HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.420 of 2011 ====================================================== 1. Kameshwar Yadav @ Kameshwar Pd. Yadav, son of late Baijnath Yadav. 2. Gauri Lal Yadav. 3. Ram Pyare Yadav. 4. Hari Nandan Yadav. 5. Bodhi Yadav, appellant 2 to 5 are sons of late Baijnath Yadav. 6. Suresh Yadav, son of Kameshwar Yadav. 7. Arvind Yadav, son Kameshwar Yadav. 8. Shyam Yadav, son of Kameshwar Yadav. 9. Bhago Yadav, son of Kameshwar Yadav. 10. Bijay Yadav, son of Gauri lal Yadav. 11. Ashok Yadav, son of late Bhaju Yadav. 12. Niraj Yadav, son of late Bhaju Yadav. 13. Ranjit Yadav, son of Ram Pyare Yadav. 14. Pappu Yadav, son of Ram Pyare Yadav. 15. Mukesh Yadav, son of Bodhi Yadav. 16. Rakesh Yadav, son of Bodhi Yadav, appellant nos. 1 to 16 residents of village- Fatehpur, P.S.-Ariari, P.O. Sohadi, District-Monghyr. 17. Smt. Biraja Devi, daughter of late Baijnath Yadav, wife of Sri Prabhu Yadav, resident of village Beniganj, P.S.-Krandi, P.O.-Chebara, District-Monghyr. .... .... Appellant/s Versus 1. Rajeshwar Pd. Yadav @ Rajeshwar Pd. Singh. 2. Prakash Pd. Yadav, both sons of late Baldeo Singh. 3. Sanjay Kumar. 4. Pankaj Kumar, respondent nos. 3 to 4 minor sons of Rajeshwar Pd. Yadav @ Rajeshwar Pd. Singh, under the guardianship of Natural father Rajeshwar Pd. Yadav @ Rajeshwar Pd. Singh, father and next friend. Respondent nos. 1 to 4 are residents of village-Fatehpur, P.s. Arari, P.O. Sohadi, District-Monghyr. 5. Sabitri Devi, daughter of late Baldeo yadav, wife of Bharosi Yadav, resident of village-Sohara, P.S.-Sikandra, District-Monghyr.
Legal Reasoning
6. Smt. Munni Kumari, son of Baldeo Yavav, wife of Sri Lalo Pd. Yadav, resident of village Sonpa, P.O.-Noni, P.S. Chandradeep, District- Patna High Court SA No.420 of 2011 (8) dt.01-05-2013 2 Monghyr. 7. Smt. Urmila Devi, daughter of late Baldeo Yadav, wife of Shri Maheshwar Pd. Yadav, resident of village-Aksharia, P.O. and P.S.- Sheikhpura, District-Monghyr at present Sheikhpura. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Anish Chandra Sinha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 8 01-05-2013 Heard Mr. Anish Chandra Sinha, the learned counsel for the appellants and Mr. Diwakar Upadhyay, the learned counsel for the contesting respondents. The defendant 1st set in the suit are the appellants in this second appeal against the judgment and decree of affirmance by the appellate court upholding the decree for partition in favour of the plaintiffs. The genealogical table is not in dispute between the parties and it has been accepted that the plaintiffs and contesting defendants are the descendants of Aklu Yadav. It is the case of the plaintiffs that the suit properties are the joint family properties of the branch of Aklu Yadav and there is unity of title and jointness of possession with regard to the same between the parties. The contesting defendants have resisted the claim of the plaintiffs on the ground of previous partition. It is the specific case of the contesting defendants that there had been earlier partition in year 1971 in the family and a memo of partition described as ‘Akhota’ Patna High Court SA No.420 of 2011 (8) dt.01-05-2013 3 was also prepared on that basis. The defendants have asserted that the joint family status stood disrupted since then and therefore the plaintiffs are not entitled to partition of the suit properties as claimed. Both the courts below, on scrutiny of pleadings and evidence of the parties, have come to the concurrent findings that the contesting defendants have failed to establish their case of previous partition in the year 1971. The suit was accordingly decreed and thereafter the appeal has been dismissed. Mr. Sinha, the learned counsel for the appellants has firstly submitted that the trial court has failed to record the specific finding on the issues of existence of unity of title and jointness of possession between the parties and therefore has committed an error in granting the decree in favour of the plaintiffs. Criticizing the impugned judgments further, it has been urged by the learned counsel that the evidence of D.W.-2 has been wrongly discarded by the courts below although the D.W.-2 was one of the punches who effected the partition between the parties in the year 1971. It has also been contended that both the courts below have not properly considered the evidence of the parties and a prayer therefore has been made to call for the lower court records in order to enable the learned counsel to persuade this court to take another view after appreciating the evidence. Patna High Court SA No.420 of 2011 (8) dt.01-05-2013 4 In view of the presumption of jointness among the members of a Hindu family, the burden of proof has been definitely on the contesting defendant 1st set who have come out with the case of previous partition in the family. Although the contesting defendants have pleaded that the memo of partition had also been prepared as evidence of partition but they did not produce the copy of the said memo of partition with the explanation that a dacoity was committed in their home in the year 1977 in which the document was taken away. Both the courts below have taken into notice that the fact of said dacoity could not be established by the contesting defendants as they have not brought the first information report lodged by them with regard to the said dacoity or evidence showing any action taken by them before the police. So far as the submission with regard to the evidence of D.W.-2 is concerned, it is manifest that the D.W.-2 has been examined to support the defendants’ case of partition. The said witness has deposed that the partition had been effected by punchayati wherein he was one of the punches. But this statement is not supported by the pleading as the contesting defendants have not disclosed in the written statement that the partition in the year 1971 had taken place through punchayati as the names of the punches therein. Moreover the civil disputes are decided according to preponderance of probability and the Patna High Court SA No.420 of 2011 (8) dt.01-05-2013 5 cumulative effect of the entire material evidence is the decisive factor and not the stray evidence. The perusal of the judgments of both the courts below shows that the findings have been arrived on the basis of analyzing the material evidence of the parties on record and those findings could not be established to perverse in any manner on behalf of the appellants. It is well settled by now that a second appeal is not a ‘third trial on the facts’ and unless the findings are established to be perverse in any manner the same are binding on the second appellate court. In the present case, the issues arising between the parties have now stood concluded by concurrent findings of fact which have not been established to be perverse and therefore the prayer to call for the lower court records has clearly no substance. In the ultimate eventuate, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)