Mostt. Maharani Devi wife of late Ghina Paswan & Ors. v. Mostt. Meera Devi wife of late Raghunandan Paswan

The plaintiffs are the appellants in this appeal against the judgment of affirmance dismissing the suit for partition. The plaintiffs have come out with the case that one Bhattu Paswan had two sons namely, Bairam Paswan and Bhogal Paswan. The plaintiffs are the descendants of the grand son of Bairam Paswan, namely, Ghina Paswan. Similarly the defendant Raghunandan Paswan (since deceased through L.R.) was the descendant of the grand son of Bhogal Paswan. The plaintiffs have sought partition of the suit property stating that this is the ancestral Patna High Court SA No.34 of 2011 (6) dt.08-02-2013 2 property of the family and is joint between the parties in which the plaintiffs are entitled to have half share. The defendant resisted the relief for partition asserting that the suit property was the exclusive property of his grand father and the plaintiffs have got no share in the same. Both the courts below have concurrently come to the finding that the plaintiffs have failed to establish their case for grant of the relief for partition. Consequently the suit and threreafter the appeal has been dismissed. The learned counsel for the appellants has firstly submitted that the survey khatiyan (Ext. 1) with regard to the suit property stands in the joint names of the grand father of the plaintiffs and defendant and therefore the joint nature of the suit property is clearly established. It has been further urged that the defendant has nowhere made out a case of partition of the suit property and has claimed the suit property to be the exclusive property of his grand father but the evidence adduced on behalf of the defendant reveal otherwise. It has also been contended by the learned counsel for the appellants that the trial court although has committed error in not giving much importance to the oral evidence but the appellate court has also only reproduced the findings of the trial court and therefore non application of mind by Patna High Court SA No.34 of 2011 (6) dt.08-02-2013 3 the appellate court is apparent. The learned counsel has placed in detail the deposition of one of plaintiffs examined as P.W.-3 as well as the parts of the pleadings in order to establish that serious error has been committed by the courts below. After perusing the impugned judgments of both the courts below and considering the submissions of the learned counsel for the appellants, it is manifest that the plaintiffs have come out with the case of the jointness of the suit properties and has prayed for partition of half share in the same. To the contrary the defendant has denied the case of the plaintiffs and claimed that the suit property to be his exclusive property. There is no dispute that Bhattu Paswan had two sons Bairam Paswan and Bhogal Paswan. Bairam Paswan had a son Boudhu Paswan who had a son China Paswan who was the predecessor of the plaintiffs. The another brother Bhogal Paswan had a son Baijnath Paswan and his only son was the defendant Raghunandan Paswan who died during the pendency of the suit and substituted by his widow. In course of the deposition one of the plaintiffs examined as P.W.-3 namely Ganesh Choudhary has stated that at the time of the death of Baijnath Paswan both the branches were separate in respect of food, residence, dealings and transactions. It has been further deposed by him that when he Patna High Court SA No.34 of 2011 (6) dt.08-02-2013 4 gained sense of understanding, his family and the family of the defendant Raghunandan Paswan were separate. The appellate court below has considered in detail this the deposition by the plaintiff along with other evidence on record and thereafter has come to the finding that the plaintiffs have failed to establish the jointness in the family as claimed. It is also apparent from the facts that the plaintiffs and the defendant are in the 4th and 5th generation from the common ancestor and in such cases the presumption of jointness is substantially diminished. The appellate court below has therefore rightly recorded the finding that in view of the admitted case of separation, it was incumbent upon the plaintiffs to come out with specific case that the suit property remained joint between the parties even when they were separate in all respects. There is no such pleading in the plaint and there is also no evidence leading to the inference that the suit property had remained joint between the parties even after they were separate in all respects. The recording of the suit property in the joint names of the ancestor of the parties would not take the plaintiffs much far in absence of any such pleading by them. In a suit for partition when the defendant comes out with the case of previous partition then clearly the burden of proof to establish the said partition lies upon his but here in the present Patna High Court SA No.34 of 2011 (6) dt.08-02-2013 5 case, the defendant has not come out with the case of previous partition but has claimed the suit property to be his exclusive property. Therefore, the burden of proof regarding jointness with regard to the suit property was on the plaintiff and more so in view of the deposition of the plaintiff as P.W. 3. Both the courts below have concurrently found the plaintiff’s case to be untrue. No perversity in the findings could be established on behalf of the appellants. In this view of the matter, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)