Dilip Kumar Singh v. Maniraj Singh

2. The defendant 1st set is the appellant in this second appeal against the judgment and decree of affirmance.

3. The suit has been filed by the plaintiffs for partition of 1/3rd share in the properties mentioned in schedule of the plaint. It is the case of the plaintiff that the common ancestor Rishal Ahir had three sons namely Ram Chartiar Singh, Gangaphal Singh and Ram Suhawan Singh. The plaintiffs and the defendants are the descendants of Ram Suhawan Singh with further case of the plaintiff that after the death of the remaining two brothers namely 2 Patna High Court SA No.252 of 2010 (3) dt.04-05-2012 Ram Charitar Singh and Gangaphal Singh, their descendants namely Most Gangia (widow of Ram Charitar Singh) and Most Duleshwari Devi (widow of pre-deceased son of Gangaphal Singh) had executed gift deed in favour of the three sons of Ram Suhawan Singh i.e. the plaintiff no.1, the defendant no.1 and the defendant no.8 transferring their properties in their favour. It is also the case of the plaintiffs that at the time of preparation of recent survey khatian the father of the plaintiff, defendant no.1 and 8, namely Ram Suhawan Singh relinquished his share in the family property and the recent survey khatian with regard to the suit properties was prepared in the names of the three brothers alone and their sisters(daughters of Ram Suhawan Singh) had also relinquished their share in the family property. As such the plaintiffs are entitled to have partition of 1/3rd share in the suit properties.

4. The defendant no.1 has contested the claim of the plaintiffs inter alia on the ground that there had already been partition in the family in the year 1978 itself. The gift deeds executed by Most. Gangia (widow of the Ram Charitar Singh) and Most Duleshwari Devi(widow of pre-deceased son of Gangaphal Singh) have also been assailed as forged and fabricated and void documents with further plea that the donors 3 Patna High Court SA No.252 of 2010 (3) dt.04-05-2012 did not acquire any right or interest in the property as their husbands died before the passing of the Hindu Women’s Right to Property Act, 1937. The relinquishment of the share by the daughters of Ram Suhawan Singh has also been denied and the defendant no.1 has asserted that the daughters of Ram Suhawan Singh including the heirs of the deceased daughters have sold their interest in the properties in favour of the wife and sons of the defendant no.1. The defendant no.1 has alleged that the suit has been filed with malafide intention to grab his self –acquired properties. The defendant no.1 has also challenged the right of Most Duleshwari in the property of her deceased husband Dhunmun Singh by alleging that she remarried the plaintiff no.1 soon after the death of her husband. The daughters of Ram Suhawan Singh and their descendants have supported the case of defendant no.1 by filing a separate written statement.

5. Both the courts below have come to the concurrent findings of fact that the gift deed executed by Most. Gangia and Most Duleshwari in favour of the plaintiff no.1, defendant no.1 and defendant no.8 was legal and valid document. It has also been held that Most Duleshwari Devi continued to be the widow of Late Dhunmun Singh and she never remarried the plaintiff no.1 as alleged by the defendant no.1. It has also been found that the 4 Patna High Court SA No.252 of 2010 (3) dt.04-05-2012 daughters of Ram Suhawan Sigh have relinquished their share in favour of their three brothers and thereafter they were left with no title to transfer in favour of the sons and the wife of defendant no.1. On the basis of these main findings the suit was decreed and thereafter the appeal has been dismissed.

6. The learned senior counsel appearing on behalf of the appellants has submitted that the appellate court below has wrongly held that the suit and appeal was not hit by the provisions of Section 4(b) and 4(c) of the Bihar Consolidation of Holding and Prevention of Fragmentation Act. It has been urged that the effect of the provisions of the Consolidation Act had been ignored by the trial court and the same has been erroneously decided by the appellate court. It has been contended that the concerned village has been notified under the provisions of Consolidation Act and there has been no denotification under Section 26(A) of the said Act and as such the courts below had no jurisdiction to entertain the suit and pass the impugned judgment and decree.

7. After the perusal of the impugned judgments, it is manifest that the issue of maintainability of the suit or its abatement under the provisions of the Bihar Consolidation of Holding and Prevention of Fragmentation Act (hereinafter 5 Patna High Court SA No.252 of 2010 (3) dt.04-05-2012 referred to as Act) has not been raised by the appellants as defendants in the trial court. The appellate court below while considering this issue has observed that the defendant no.1 had not filed any evidence/documents to show that the concerned village had been covered by the Act by appropriate notification by the State Government. No ground has been taken by the appellants in this second appeal, in the memo, that the relevant notification under the Act has been filed in the courts below or evidence has been brought on the record to substantiate the plea that the suit lands had been made subject matter of on-going consolidation proceeding and the same has been ignored by the courts below. Moreover in view of the rival cases of the parties the questions relating to the status of Most Duleshwari Devi, the validity of the gift deed executed by Most Gangaia and Most Duleshwari Devi in favour of the plaintiff no.1 , defendant no.1 and defendant no.8, the relinquishment of the shares of the daughters of Ram Suhawan Singh and validity of the sale deeds executed by them in favour of the sons and wife of defendant no.1 necessarily emanated and were to be decided in the suit. The Apex Court in the case of Ram Sakal Singh Vs. Munako Devi (1997(2)PLJR 63), while considering the scope of Section 3(1)and 4(1) (C) of the Act has held that in such cases the 6 Patna High Court SA No.252 of 2010 (3) dt.04-05-2012 substratum of the lis has to be considered and decided on the basis of pleadings and evidence on record. In the present case, the relief for partition as prayed by the plaintiffs is only sequential to the questions relating to the status of Most Duleshwari, the validity of the gift deed by the two widows, the relinquishment of the shares by the daughters of Ram Suhawan Singh and the validity of the sale deeds in favour of the sons and wife of defendant no.1. Such questions can be determined only by a civil court and the appellate court below has rightly held that the suit was maintainable and could not abate under the provisions of Section 4(1)(C) of the Act.

8. There is thus no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)