Baiju Rai v. Smt. Nagina Devi

plaintiff/respondent no.1 instituted the said title suit for a declaration of her title and possession over 2 Acres 39 decimal of the land out of the suit land or in the alternative she sought fresh partition of the suit land separating 1/3rd share in favour of the plaintiff. The dispute was confined to the estate of Sukhdeo Rai who had two sons, namely, Baiju Rai and Bhikhari Rai ( Defendants 1 & 2) and three daughters, namely, Parmila Devi, Urmila Devi ( Defendant nos. 3 and 4) and Nagina Devi, the plaintiff. According to the plaintiff/respondent no.1, common ancestor Jamuni Rai, father of Sukhdeo Rai had got three acres 93 decimal of land under Khata No. 172 which was inherited by his sons including father of the plaintiff Sukhdeo Rai. There was a partition in the family in the year 1969. After partition Sukhdeo Rai acquired certain land in the year 1970 and 1976. The suit land fell in the share of Sukhdeo Rai which was allotted to him through partition in the year 1969 and other lands purchased by him on

30.12.1970 and 17.2.1976. As per her case, after the death of Sukhdeo Rai, his widow, two sons and three daughters equally inherited the suit land to the extent of 1/6th decimal and half acres 3 Patna High Court SA No.106 of 2012 (7) dt.16-05-2013 each. She also took a plea that the plaintiff used to look after the affairs of her mother before her marriage and therefore, through a private partition in a family arrangement, among the heirs of Sukhdeo Rai, the plaintiff/Respondent no.1 and her mother were jointly allotted 2 acres 39 decimals of land. On the occasion of the marriage of Plaintiff/respondent no.1 in July 1989, her mother gave her share of the property to the plaintiff/appellant in “Khoichha”. According to the plaintiff, her name was mutated over the said 2 acres 39 decimals of land by an order dated

17.2.1997 passed by the Circle Officer, Bochaha which was to the knowledge of the defendant. She paid rent thereafter. The dispute arose thereafter as the defendants/appellant filed Mutation appeal which was allowed by the learned DCLR. Emboldened by the order of the learned DCLR, the defendant started interfering with the peaceful possession of the plaintiff over the suit land, according to the plaintiff’s case, leading to the institution of the suit.

#3. The defendants who are appellants herein contested the suit by filing written statement. The defendants, however, claimed that the entire suit land which formed the estate of Sukhdeo Rai was the ancestral land and they denied any part of the estate to the self- acquired property of Sukhdeo Rai. The 4 Patna High Court SA No.106 of 2012 (7) dt.16-05-2013 defendants pleaded that the widow of Sukhdeo Rai had relinquished her share in the estate of Sukhdeo Rai in favour of defendant nos. 1 and 2 Baiju and Bhikhari Rai. They also contended that defendants Parmila and Urmila had also relinquished their share in favour of the defendant Nos. 1 and 2, their brothers. They denied the plaintiff’s case of family arrangement. They also denied the assertion that their mother Siya Devi had given any property to the plaintiff in “Khoichha” and that the plaintiff was in possession of such property given to her in “Khoichha”. They contended that as per Hindu Law the plaintiff would be entitled to 1/18th share in the estate of Sukhdeo Rai.

#4. On the basis of the rival pleadings learned trial Court framed altogether eight issues including issue Nos. v,vi and vii, the gist of which are as follows:- “v. Whether in family arrangement the plaintiff and her mother were allotted 2 acres 39 decimal of land and mother gave her share to the plaintiff? vi. Whether there was joint-ness of title and possession over the suit property between among the parties to the suit? vii. Whether the plaintiff was entitled for a decree of partition as alternative relief?”

#5. After issues having been framed the parties to the suit adduced their evidence in support of their case in course of trial. 5 Patna High Court SA No.106 of 2012 (7) dt.16-05-2013 Learned trial Court on the basis of such evidence, while deciding issue no.5 rejected the plaintiff’s case of allotment of 2 acres 39 decimal of land jointly to the plaintiff and her mother. Learned trial Court held that there was no substance in the plea of giving of any land by plaintiff’s mother in “Khoichha” to the plaintiff and such document was forged and fabricated. Learned trial Court did not accept the plaintiff’s claim that Sukhdeo Rai had any independent source of income out of which he could have acquired land in the year 1970-1976. As per the trial Court, the entire suit land was inherited by Sukhdeo Rai from his ancestor.

#6. Learned trial Court, while deciding issue no.VI held that there was jointness of title and possession over the suit property of the parties to the suit.

#7. Learned trial Court, however, held plaintiff to be entitled for 1/18th share in the estate of Sukhdeo Rai. On the basis that Sukhdeo Rai Baiju and Bhikhari Rai were entitled to 1/3rd share each. The six heirs, after death of Sukhdeo Rai were thus, entitled for 1/18th share each and thus held plaintiff to be entitled for 1/18th share vide judgment dated 28.1.2010 passed in T.S. No. 170 of 1998.

#8. The plaintiffs, however, preferred appeal against the said judgment of learned trial Court vide Title Appeal No. 16 of 6 Patna High Court SA No.106 of 2012 (7) dt.16-05-2013

#2010. Learned first appellate Court on the basis of the pleading on record was of the view that learned trial Court did not frame the issue as per Sub Rule 3 of Rule 1 of Order 14 of the Code of Civil Procedure and he accordingly, framed altogether 11 issues. The First appellate Court, in view of the fact that according to him sufficient evidence was available on record, proceeded determine the issue which ought to have been framed by the learned trial Court on the basis of such evidence.

#9. On Comparison of the issues framed by the trial Court and learned first appellate Court, it appears that two additional issues were framed by the first Appellate Court which are as follows:- “X. Whether the mother of the plaintiff had given her share in Khoichha to plaintiff July 1989 on the occasion of the marriage of the plaintiff? XI. Whether the plaintiff is in possession over 2 acres 39 decimals of the suit land?”

#11. Issue no. 5 as framed by the trial Court is issue IX in the judgment of the first appellate Court which reads thus:- “IX. Whether there was any family arrangement among the heirs of Sukhdeo Rai through which 2 acres 39 decimal land was jointly allotted in favour of the plaintiff and her mother?”

#12. Learned First appellate Court concurred with the 7 Patna High Court SA No.106 of 2012 (7) dt.16-05-2013 findings of fact arrived at by the learned trial Court on Issue no. V. While deciding issue No.IX as framed by the learned first appellate Court, it came to a finding that the plaintiff failed to prove partition and there being presumption of jointness, the onus was heavy on her to prove this fact. Learned first appellate Court also concurred with the findings of the trial Court that 2 acre 39 decimal of land was never allotted to the plaintiff and her mother jointly and therefore, there was no question of such land having been given to the plaintiff in “Khoichha”.

#13. The only modification which the first appellate Court did in the judgment of the trial Court was that instead of granting 1/18th, share the first appellate Court held the plaintiff to be entitled for 1/9th share and this is the only reason for the appellants in the present second appeal to question the judgment of the first appellate Court.

#14. While considering this aspect, this has to be kept in mind that the defendants had taken a plea that other sisters, namely, Parmila, Urmila and their mother i.e. widow of Sukhdeo Rai had relinquished their share in favour of defendant nos. 1 and

#2. To this plea Parmila and Urmila ( defendants 3 and 4) had agreed by stating that they had relinquished their share. There was no material for the Court to come to the conclusion that Siya 8 Patna High Court SA No.106 of 2012 (7) dt.16-05-2013 Devi widow of Sukhdeo Rai had relinquished her share.

#15. Learned first appellate Court applying the law laid dow by the Supreme Court in AIR 1987 SC 1775 ( Thamma Venkat Subbamma(dead) by L.R. Vs. Thamma Rattamma and others) held that relinquishment could not be made in favour of any person and it will operate for the benefit of all concerned of the joint family. I such view of the matter, share of Siya Devi ( 1/18th ), share o Urmila ( 1/18th ) and share of Nagina ( 1/18th ) was equall distributed among Nagina( Plaintiff), Baiju( Defendant No.1) an Bhikhari ( defendant NO.2) by virtue of which they became entitle for additional 1/18th share each. In this way Nagina becam entitled for ( 1/18th +1/18th ) share equal to 1/9th share.

#16. I do not find any infirmity in the judgment of the first appellate Court by which it introduced a modification as indicated above.

#17. The present second appeal does not involve any substantial question of law. The appeal does not merit admission and is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-