Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.376 of 2011 ====================================================== 1. Kapildeo Mahto son of late Khannu Mahto @ Sukhu Mahto. 2. Bhim Mahto. 3. Chhotey Lal both minor sons of Kapildeo Mahto under the guardianship of their father, the natural guardian who has no interest adverse to those of the minors. 4. Jagarnath Mahto son of late Khannu Mahto @ Sukhu Mahto. 5. Ramesh Kumar. 6. Munna Kumar. 7. Niraj Kumar 5 to 7 are minor sons of Jagarnath Mahto under the guardianship of their father, the natural guardian who has no interest adverse to those of the minors. 8. Deonath Prasad son of late Khannu Mahto @Sukhu Mahto. 9. Ashok Kumar. 10. Sanjeet Kumar Both minor sons of Deonath Prasad under the guardianship of their father, the natural guardian who has no interest adverse to those of the minors. 11. Sheonath Prasad son of lath Khannu Mahto @ Sukhu Matho all residents of Dhawal Pura P.S. Chowk, Patna City, District Patna. .... .... Appellant/s Versus
Legal Reasoning
1. Bharat Singh. 2. Anant Narain Singh @ Anant Kumar. 3. Dinanath Mahto. 4. Kailash Mahto sons of late Dasrath Mahto. 5. Smt. Urmila Devi wife of Late Devendra Prasad. 6. Guddi Devi daughter of late Devendra Prasad wife of Rajesh Mahto resident of Mohalla Pathar Ki Masjid P.S. Sultanganj, P.O. Mahendru District-Patna. 7. Satish Prasad. 8. Lallan Mehta. 9. Munna Mahto sons of Bharath Singh. 10. Raju Mahto. 11. Pradeep Mehta. 12. Raj Kumar Mehta. 13. Arvind Kumar. Patna High Court SA No.376 of 2011 (4) dt.25-04-2013 2 14. Chandra Mohan Prasad sons of Anant Narain @ Anant Kumar. 15. Ranjan Prasad son of Dinanath Prasad. 16. Anand Mohan Mehta son of Kailash Mehta. 17. Dayanand Prasad. 18. Manna Kumar. 19. Anil Kumar sons of late Devendra Prasad, all residents of Mohall- Dhawalpura P.S. Chowk District-Patna. 20. Ramdyal Mahto. 21. Ram Ishwar Mahto. 22. Devanand Mahto sons of late Lachhman Mahto. 23. Shambhu Mehta son of Ramdyal Mahto. 24. Arjun Kumar son of Ramdyal Mahto. 25. Babloo Mahto. 26. Sanjeet Mahto. 27. Indrajeet Mahto @ Chhote Kumar. 28. Govind Kumar (minor). 29. Gaurishankar (minor). 30. Uday Prasad (minor) all sons of sri Ram Ishwar Mahto, 31. Jiju Kumar (minor). 32. Birju Kumar (minor) sons of Ram Eshwar Mahto minors 28 to 32 are under the guardianship of their father, the natural guardian who has no interest adverse to those of the minors all residents (except no. .) of Dhawal pura P.O. Begumpur P.S. Chowk Patna City District-Patna. ... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shailendra Kumar Bhartee For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 4 25-04-2013 Heard the learned counsel for the appellants. The plaintiffs are the appellants in this second appeal against the judgment and decree of affirmance by the appellate court below upholding the dismissal of the suit. The plaintiffs have filed the suit for partition claiming Patna High Court SA No.376 of 2011 (4) dt.25-04-2013 3 half share in the suit properties described in schedule-I and II asserting the same to be their joint family property in which the plaintiffs have claimed to have unity of title and jointness of possession with the defendants. There is no dispute between the parties that the plaintiffs and defendants are the descendants of Bikham Mahto. The defendants however have contested the claim of the plaintiffs on the ground that there had already been partition by metes and bounds in the family long back on 25.11.1947 and since thereafter the co-sharers have been coming in separate exclusive possession of their allotted share and have been dealing with the same. In support of their case, the defendants have brought on record the deed of partition (Ext. B) and the sale deeds (Ext. D series) executed by the co-sharers with regard to the shares allotted to them in partition. Some of the sale deeds are inter se transactions between the co-sharers. The trial court, after considering the pleadings and evidence of the parties, dismissed the suit after coming to the conclusion that there had already been partition by metes and bounds among the plaintiffs and defendants. In appeal, the appellate court below, after reappraisal of evidence, has also come to the finding that there had been partition between the parties in the year 1947 itself and therefore concurred with the findings of Patna High Court SA No.376 of 2011 (4) dt.25-04-2013 4 the trial court and dismissed the appeal. The learned counsel for the appellants has submitted that the plaintiffs are entitled to half share in the suit property which has not been given to them in partition in the year 1947. It has also been urged that the findings recorded by both the courts below are not in consonance with the evidence on record. It has been canvassed that the deed of partition (Ext. B) which has been relied upon by both the courts below was not admissible in evidence for want of registration. After considering the submissions of the learned counsel for the appellants and perusing the impugned judgments, it is pellucid that the defendants have adduced besides oral evidence, a number of documentary evidence to establish their case of partition. Foremost among the documentary evidence is the partition deed (Ext. B) which the plaintiffs have claimed to be not admissible in evidence for want of registration but both the courts below have rightly held that the said deed can be considered as a deed of family settlement between the parties evidencing separation of status among the family members. The separation and partition of the family property are also corroborated by other documentary evidence (Ext. D series), from which it clearly transpires that the parties to the suit have accepted the said family settlement, acted on that basis and have also sold the part of the Patna High Court SA No.376 of 2011 (4) dt.25-04-2013 5 suit properties. Further the sale deeds (Ext. D series) further demonstrate inter se transactions between the family members. These facts lead to inference that there is now no more unity of title and jointness of possession existing between the parties with regard to their family properties. The contention behalf of the appellants that the plaintiffs are entitled to half share in the suit properties cannot be accepted for the simple reason that there is no prayer by the plaintiffs for reopening the previous partition made by family settlement in the year 1947. It is not the case of the plaintiffs that they had no knowledge of the deed of partition (Ext. B) rather in the deposition, some of the plaintiffs have accepted that they had the knowledge in the year 1947 itself regarding the said partition. Both the courts below have also considered this aspect and have rightly not accepted the case of the plaintiffs. The issues arising between the parties are now concluded by concurrent findings of fact. No perversity in any manner in the same could be established on behalf of the appellants. In the ultimate eventuate, I do not find any substantial question of law arising for consideration in this appeal, which is accordingly dismissed. Devendra/- (Vijayendra Nath, J)