====================================================== Smt. Sita Devi @ Sitli Devi & Ors v. Binda Devi & Ors
Case Details
Patna High Court SA No.432 of 2010 (10) dt.07-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.432 of 2010 ====================================================== Smt. Sita Devi @ Sitli Devi & Ors. .... .... Appellant/s Versus Binda Devi & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Bidhanesh Mishra For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 10 07-08-2013 Heard the learned counsel, Mr. Ramesh Jha appearing on behalf of the appellants and the learned counsel, Mr. Sharda
Legal Reasoning
this court in Division Bench decision in the case of Arjun Mahto vs. Monda Mahtain, AIR 1971 Patna 215 held that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remained on the person who asserts that there was a partition it is permissible to fill up gaps more readily by reasonable inference Patna High Court SA No.432 of 2010 (10) dt.07-08-2013 5 than in a case where the evidence is not obliterated by passage of time. Separation in food and residence for a long time among the brothers of a Hindu family, independent transactions of property, separate possession and enjoyment of properties are by themselves, no doubt, not conclusive but the cumulative effect of such facts may show that there had been a partition between the brothers during their lifetime. In the present case, on the basis of the evidence, both the courts below have concurrently recorded the finding that the parties are separate since 1930 and they are dealing and enjoying the property as owner thereof. Therefore, this finding being the finding of fact, cannot be interfered with in second appellate jurisdiction. So far non-consideration of Exhibit 1, the cadastral survey record of right is concerned, it may be mentioned here that the record itself is of the year 1906-07. According to the finding of the courts below, there had been partition in the year 1930, therefore, the state of affairs which was in existence in the year 1906 cannot be presumed to have continued till the institution of the suit particularly when on the basis of the evidence, it was found that there had been partition in the year 1930. In my opinion, therefore, the judgment of the Lower Appellate Court cannot be said to be perverse. Patna High Court SA No.432 of 2010 (10) dt.07-08-2013 6 In view of my above discussion, I find that the point raised by the learned counsel for the appellants is not a substantial question of law. Therefore, since there is no substantial question of law involved in this Second Appeal, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-
Arguments
Nand Mishra appearing on behalf of the respondents under Order XLI Rule 11 C.P.C. The plaintiffs-appellants-appellants have filed this Second Appeal against the judgment and decree dated 07.05.2010 passed by the learned 1st Additional District Judge, Madhepura in Title Appeal No.12 of 2007 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 12.03.2007 passed by the learned Civil Judge I (Sr. Division), Madhepura in Title Suit No.24 of 2000(Partition). The plaintiff no.1, Sita Devi filed the aforesaid partition suit praying for partition of her 1/3rd share in the suit property. The other plaintiffs are the descendants of Sita Devi. According to the plaintiff, the suit property belonged to Jalim Patna High Court SA No.432 of 2010 (10) dt.07-08-2013 2 Mandal who had three sons namely Adhik Mandal, Santi Mandal and Tanuk Mandal. Adhik Mandal died in the year 1935 leaving behind his widow, Lalita Devi and a son, Gunilal Yadav, the defendant no.1. The defendant nos.2 to 4 are the sons of Gunilal Yadav. Santi Mandal had two sons, they are defendant 2nd party. Tanuk Mandal died in the year 1960 leaving behind his widow, Bahuri Devi and a daughter, Sita Devi. Bahuri Devi also died in the year 1987. There has been no partition between the parties and, therefore, there is unity of title and unity of possession over the suit land. The defendant 1st party appeared and filed contesting written statement. The defendant 2nd party also filed written statement. Their main defence is that there had already been partition between the sons of Jalim Mandal in 1930 and accordingly, the parties are living separately, cultivating the land separately and they have also sold some portion of the land and some properties have been acquired by them out of their self- earnings. The trial court on the basis of the materials available on record came to the conclusion that there has already been partition between the parties and the parties are living separately according to their shares. Accordingly, the suit was dismissed. Patna High Court SA No.432 of 2010 (10) dt.07-08-2013 3 On appeal, the Lower Appellate Court confirmed the finding of the trial court and dismissed the appeal. The learned counsel, Mr. Ramesh Jha appearing on behalf of the appellants submitted that none of the courts below have considered Exhibit 1, the cadastral survey record of right in which the property has been recorded in the name of Jalim Mandal and admittedly, the plaintiff no.1 is the daughter of Tanuk Mandal. Therefore, there was unity of title and possession between the parties but both the courts below without considering this Exhibit 1 held that there is no unity of title and possession. According to the learned counsel, because of non-consideration of this Exhibit 1, the judgment of the Lower Appellate Court is perverse. On the other hand, the learned counsel, Mr. Mishra appearing on behalf of the respondents submitted that all the evidences have been considered by the courts below and thereafter both the courts below concurrently recorded the finding that there had already been partition between the parties. In such circumstances, the finding cannot be interfered with in second appellate jurisdiction. From perusal of the Lower Appellate Court judgment, it appears that the Lower Appellate Court has considered the evidences produced by the parties. The Lower Appellate Court Patna High Court SA No.432 of 2010 (10) dt.07-08-2013 4 has also considered that the plaintiff’s witnesses have admitted that the plaintiff no.1 is in possession of the land of the share of her father, Tanuk Mandal and she resides in the house of her parents. Some of the witnesses have also stated that properties have been purchased after separation. Admittedly, in the present case, there is no case of the parties that partition was affected by any partition deed. After considering the oral evidences adduced by both the parties, both the courts below came to the conclusion that the parties are separate since 1930 and are residing separately, messing separately, cultivating the land separately and even they have sold part of the lands in their shares and have also acquired some of the properties. In similarly situated case, the Hon’ble Supreme Court in the case of Bhagwan Dayal(since deceased) and another vs. Mst. Reoti Devi(deceased), AIR 1962 Supreme Court 287 and