Ram Naresh Singh v. Both son of Late Darwari Singh, present address resident of Mohalla
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.200 of 2011 =================================================== Umesh Chandra Singh, Son of Late Darwari Singh, resident of village Jatiya, P.S.- Sonpur, District- Chapra, at present resident of Mohalla-Jhawakothi, P.S.- Barari, District- Bhagalpur .... .... Plaintiff/Appellants/Appellantss 01. Krishna Deo Singh 02. Ram Naresh Singh Versus Both son of Late Darwari Singh, present address resident of Mohalla-Jhawakothi, P.S.- Barari, District- Bhagalpur 03. Smt. Lalita Devi, wife of Shiv Darshan Singh, resident of village- Dhanora, P.O.+ P.S.-Narwan, District-Chapra at present Govindpur near BMP Camp, Dhnbad 04. Smt. Nirmala Devi, W/o Shivjee Singh, both daughter of Late Darwari Singh, resident of Sanokhar, P.O.+ P.S.- Sanokhar, District-Bhagalpur .... .... Defendant/Respsodnents/Respondents =================================================== Appearance : For the Appellant/s : Mr. Ganpati Trivedi =================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 2 13-02-2013
Legal Reasoning
Heard Mr. Ganpati Trivedi, the learned counsel appearing on behalf of the appellant. 2. The plaintiff is the appellant in this appeal against the judgment and decree of the appellate court below upholding the part dismissal of the suit for partition with regard to the property mentioned in Schedule-A(Part I) of the plaint. The genealogy of the family is not in dispute between the parties and it has been accepted by the parties that plaintiff and defendants are the descendants of Late Darwari Singh. The plaintiff and defendant nos.-1 and 2 are own brothers being son of Darwari Singh. It is also the accepted case of the parties that their sisters respondent no. 3 and 4 have relinquished Patna High Court SA No.200 of 2011 (2) dt.13-02-2013 2 their shares in favour of their brothers. The suit properties described in Schedule-A consists of two types of property. Schedule-A (Part I) is the property described as Jhawakothi, Bhagalpur and Schedule-A (Part II) consists of agriculture lands in village Mouza Saur, P.S.-Kahalgaon, District- Bhagalpur. 3. The plaintiff’s case is that the homestead property mentioned in Schedule A(Part I) has been purchased out of the joint family fund after the death of their father in the year 1975. With regard to the agriculture land Schedule-A (Part II) the plaintiff has come out with the case that this is ancestral property jointly inherited by the plaintiff and defendants. The defendant nos. 1 and 2 on the other hand contested the claim of the plaintiff with regard to the property in Schedule-A (Part I) and denied the same to have been acquired out of the joint family fund. It has been pleaded by the contesting defendants that although the said property has been acquired out of their own fund, but the name of the plaintiff has been given therein as he was their younger brother. It is the also the case of the defendants that later on there has been amicable partition with regard to the property of Schedule-A (Part I) in three shares, out of which one share has been allotted to the plaintiff on which he has constructed his house and got his name mutated in Municipal records; and similarly the defendant nos. 1 and 2 have also constructed their separate houses in their allotted Patna High Court SA No.200 of 2011 (2) dt.13-02-2013 3 shares and have got their names mutated respectively in the Municipal records. 4. The trial court on appreciation of the evidence, in view of the pleadings of the parties has come to the finding that the property mentioned in Schedule-A (Part I) has been partitioned by metes and bounds and the plaintiff is in exclusive possession of his separate share therein. However with regard to property in Schedule-A (Part II) the trial court has decreed the suit finding the same to be still the joint property of the parties. The appellate court, on re-appreciation of evidence, concurred with the findings of the trial court. 5. Mr. Trivedi, appearing for the appellant, has mainly submitted that plaintiff has come out with case of partition with regard to the properties mentioned in Schedule-A of the plaint but the courts below have committed error in law in holding that there has been partition with regard to the property mentioned in Schedule-A (Part I) and the property in Schedule-A (Part II) is still the joint property. Thus, the emphasis has been placed by the learned counsel on the issue of partition on submission that if such case of partition has been accepted then it would be amount to partial partition which could not have been upheld. 6. It is manifest that the plaintiff has prayed for partition of two categories of property mentioned in Schedule -A of the plaint. The courts below could have given finding that Patna High Court SA No.200 of 2011 (2) dt.13-02-2013 4 there had already been partition with regard to the property mentioned in Schedule-A (Part I) and granted the decree as prayed for by the plaintiff for partition of the property in Schedule-A (Part II). It is well settled by now that there is no bar to partial partition of the joint family property. The evidence on record reveal in definite terms that the three brothers are in separate exclusive possession of 1/3rd share each in the property described in Schedule A (Part I) of the plaint and separate holdings in the municipal records have also been created. Both the courts below after scrutiny of e vidence have come to the finding that the plaintiff and his two brothers (the defendant no.1 and 2) are in separate exclusive possession of their shares after partition. The submission on behalf of the appellant that in view of the finding of joint status of the parties for Schedule A (Part II) property, the property in Schedule A (Part I) should have been held to be joint, cannot be accepted and that too when admittedly the Schedule A (Part I) property is urban house property whereas the Schedule A (Part II) is agricultural property in the village. No perversity in any manner in the findings of fact by the courts below could be established on behalf of the appellant. 7. It is, therefore, held that there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. (V. Nath, J) P.K./-