Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.368 of 2011 ====================================================== 1. Most. Kewala Devi wife of late Raj Mangal Choudhary. 2. Ram Naresh Chaudhary, son of late Raj Mangal Choudhary, both resident of village berha, Pachgachiya, P.S. Anchal Bathnaha, District- Sitamarhi. .... .... Appellant/s Versus 1. Raj Kishore Chaudhary son of Jagat Lal Chaudhary, resident of village- berha, Pachgachiya, P.S. and Anchal-Baithnaha, District-Sitamarhi. 2. Raj Karan Choudhary, son of Jagatdeo Chaudhary, resident of village Berha, Pachgachiya, P.S. and anchal Bathnaha, District-Sitamarhi. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. T.N. Maitin, sr. Adv. Mr. Hans Lal Kumar For the Respondent no.1 : Mr. Binod Kumar Singh, Adv. Mr. Ashok Kumar Jha, Adv. For the Respondent no.2: Mr. Abinash Kumar, Adv. Mr. Shankar Kumar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 8 25-04-2013
Legal Reasoning
Heard Mr. T.N. Maitin, the learned senior counsel for the appellants. Mr. Binod Kumar Singh advocate, has appeared for the respondent no. 1 and Mr. Avinash Kumar advocate has appeared for the respondent no. 2. This appeal has been filed by the plaintiffs assailing the common judgment and decree passed in T.A. No. 12 of 2007/06 of 2007 and T.A. No. 13 of 2007/07 of 2007 whereby the appellate court has reversed the decree granted in favour of the plaintiffs for Patna High Court SA No.368 of 2011 (8) dt.25-04-2013 2 partition in the suit property. As the factual matrix would unveil, Ram Khelawan Choudhary was the common ancestor who had two sons namely Jagatlal Choudhary and Jagdeo Choudhary. Jagatlal Choudhary had a son Raj Kishore Choudhary who was defendant no. 3 in the suit and appellant in T.A. No. 12 of 2007 in the court below. In the present appeal Raj Kishore Choudhary is the respondent no. 1. Jagdeo Choudhary had two sons namely Raj Mangal Choudhary and Raj Karan Choudhary. Raj Karan Choudhary was the defendant no. 2 in the suit and appellant in T.A. No. 13 of 2007 in the court below. In the present appeal Raj Karan Choudhary is respondent no. 2. Raj Mangal Choudhary and his son Ram Naresh Choudhary were the plaintiffs in the suit. Raj Mangal Choudhary died during the pendency of the suit and was substituted by his widow Most. Kewla Devi who is appellant no. 1 in the present appeal and Ram Naresh Choudhary is appellant no. 2 in the present appeal. The plaintiffs filed the suit for partition claiming 1/6th share in the joint family property on the basis of assertion that there was unity of title and jointness of possession between the parties with regard to the suit properties. The defendants contested the claim of the plaintiffs and asserted that there had already been partition in the family in the year 1964 between Patna High Court SA No.368 of 2011 (8) dt.25-04-2013 3 Jagatlal Choudhary and Jagdeo Choudhary and thereafter again there was partition in the branch of Jagdeo Chodhary in the year 1972 and thus denied the existence of unity of title and jointness of possession with regard to the suit property. The trial court, on consideration of the pleadings and evidence of the parties, decreed the suit and granted the share as prayed by the plaintiffs in the suit property. The appellate court, however, on reappraisal of evidence, has reversed the findings of the trial court. The contesting defendants separately preferred two appeals i.e. Title Appeal No. 12 of 2007 and Title Appeal No. 13 of 2007. The appellate court below heard both the appeals analogously, allowed the same and reversed the findings of the trial court and dismissed the suit. Mr. Maitin, the learned senior counsel for the appellants has submitted that the appellate court below has erred in law in non-suiting the plaintiffs by misconstruing the evidence. It has been urged that the trial court meticulously considered the oral as well as documentary evidence and thereafter came to the finding that their existed jointness of title and possession between the parties over the suit properties. Criticizing the appellate court’s judgment further, it has been argued that separate living and Patna High Court SA No.368 of 2011 (8) dt.25-04-2013 4 possession of the property for convenience by the family members would not constitute partition which must be proved to have been done by metes and bounds. In support of the submission, the reliance has been placed on the judgment of the Apex Court in the case of M. Venkataramana Hebbar Vs. M. Rajagopal Hebbar 2007 (3) PLJR SC 81. The learned senior counsel has placed the findings of the trial court as well as appellate court in order to persuade this court to take the view that the findings of the appellate court are not based upon the real import of the evidence on record. The learned counsel has put emphasis on the discussions of the evidence of the parties made by the trial court in its judgment and has submitted that the correct interpretation has been done by the trial court. It is manifest from the perusal of the judgments of both the courts below and consideration of the submissions of the learned senior counsel that the crucial issue arising between the parties is the factum of previous partition. For establishing the previous partition, the contesting defendants have adduced evidence including the documentary evidence. It appears that the defendants have brought in evidence the petition (Ext. D/1) filed by the co-sharers before the circle officer praying for splitting the Jamabandi which was till then joint among the co-sharers. In the Patna High Court SA No.368 of 2011 (8) dt.25-04-2013 5 said application, it had been accepted that there had been partition between the parties in the year 1972 and the specific areas allotted to the different co-shares were also mentioned in the schedules of the said petition. From Ext. G/1, which is the order of Mutation Case No. 203 of 1974, it transpires that on the basis of the aforesaid petition by the co-sharers, the Mutation Case No. 203 of 1974 was initiated and according to the prayer made by the co- sharers the Jamabandi was split up. As Ext. D/1 was only a copy of the petition filed before the circle officer by the co-sharers for splitting the Jamabandi, the original petition was also called for by the court below, and the report of the circle officer in this regard has been brought on record as Ext. E/1. In this report (Ext. E/1), the circle officer has mentioned the fact of creation of separate Jamabandi in the name of the different co-sharers and has also mentioned the areas with regard to which the different Jamabandis have been created. It has been further mentioned in this report that the original petition stood destroyed in flood. The rent receipts (Ext. E series) have also been brought on record on behalf of the defendants to establish the separate payment of rent by the co- sharers with regard to the properties allotted in their shares in accordance with the Jamabandis in their names. It would be apposite to mention here that the partition as referred in Ext. D/1, Patna High Court SA No.368 of 2011 (8) dt.25-04-2013 6 Ext. E/1 and Ext.-G/1 had taken place between Jagdeo Choudhary and his sons. It would be further pertinent to take into notice that one of the sons of Jagdeo Choudhary namely Raj Mangal Choudhary alongwith his son Ram Naresh Choudhary are the plaintiffs in the suit while the another son Raj Karan Choudhary has contested the suit as defendant. The appellate court below has scrutinized the aforesaid documents in detail and thereafter has further considered the sale deeds (Ext.-B series) executed by the plaintiffs themselves wherein specific area with boundaries has been transferred with the recitals that the said area has fallen to the exclusive share of the vendors. The will (Ext. E) executed by Jagdeo Choudhary has also been considered by the appellate court below and in the said will Jagdeo Choudhary had mentioned the fact of splitting up of the Jamabandi through Mutation Case No. 203 of 1974. There is no dispute that the probate of this will has also been granted. From the reading of the trial court judgment, it does not appear that valid reasons have been assigned for discarding the aforesaid documentary evidence. The appellate court has reached to the independent finding of fact on the basis of careful scrutiny of the aforesaid documentary evidence along with other evidence on record and thereafter has found that the contesting defendants Patna High Court SA No.368 of 2011 (8) dt.25-04-2013 7 have succeeded in establishing the previous partition and thereby rebutting the presumption of jointness. The aforesaid documentary evidence clearly show that specific areas have been allotted to the different co-sharers leading to the irresistible inference of partition by metes and bounds among them. Moreover, the alienations, thereafter, of separate area with boundaries made by the plaintiffs themselves are further in consonance with the status of partition among the co-sharers by metes and bounds. Thus, I do not find substance in the submissions on behalf of the appellants that the contesting defendants have failed to establish the partition by metes and bounds. The reliance upon the judgment of the Apex Court in the case of M. Venkataramana Hebbar Vs. M. Rajagopal Hebbar (supra) is clearly misplaced in these facts. The appellate court has further found that the purchasers from the plaintiffs, who purchased the parts of the suit property prior to the filing of the suit, have not been made parties in the suit. By referring to Art. 333 of Mulla’s Hindu Law wherein it has been said that the purchasers from the plaintiffs are necessary parties to the suit for partition, the appellate court has rightly held that the suit suffers from the non-joinder of necessary parties. On this score, the appellate court has also taken into notice that the two daughters of the deceased plaintiff no. 1 Raj Mangal Patna High Court SA No.368 of 2011 (8) dt.25-04-2013 8 Choudhary have also not been made parties in the suit. During the course of the argument, it could not be shown that this finding by the appellate court is erroneous. In view of the aforesaid discussions, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)