Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.119 of 2011 ====================================================== Lallan Bhagat, Son of Late Mahendra Bhagat, Resident of Jaijore, P.S. Andar, Pragna- Andar District-Siwan .... .... Appellant/s Versus 1. Jamadar Bhagar 2. Bhagan Bhagat 3. Saheb Bhagat, all sons of Late Bhola Bhagat, all resident of village-Jaijora P.S. Andar, Pragna-Andar, District-Siwan 4. Jiyani Devi wife of late Mahendra Bhagat 5. Deorati Devi D/O Late Bhola Bhagat, both residents of village- Jaijora, Pragna-Andar, P.S. Andar, District-Siwan.. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sudhir Ranjan For the Respondent/s : Mr. Ranjeet Kumar & Dilip Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 7 13-05-2013 The appellant was the plaintiff in Title ( Partition) Suit No.348 of 1998/206/2004 before Additional Subordinate Judge,Vth, Siwan and is aggrieved by the judgment and decree dated 14.12.2010 and 10.1.2011 passed by the learned Additional District Judge, FTC-III, Siwan in Title Appeal No. 54 of 2005. By the said judgment and decree learned first appellate Court reversed the judgment and decree dated 20.10.2005 and 23.11.2005 respectively passed by the learned Subordinate Judge, Siwan in said Title Suit No. 348/1998/206/2004, whereby learned Subordinate 2 Patna High Court SA No.119 of 2011 (7) P2 o/15/15 Judge had decreed the suit in favour of the
Facts
plaintiff/appellant wherein he had sought for decree of partition. 2. The plaintiff/appellant had filed the suit seeking partition of the suit property claiming half share in the estate left by the common ancestor of the plaintiff and defendants, Khaelawan Mahto. As per the plaintiff’s case, Khelawan Mahto had three sons, Sukhari Mahto, Narayan Mahto and Shiv Bachan Mahto. Sukhari died issueless. Narayan had one son, namely, Bhola Mahto whose sons, Jamadar Bhagat, Bhagan Bhagat and Saheb Bhagat are respondent first set herein and were defendants before the trial Court. The plaintiff is son of Mahendra Bhagat who was son of Shiv Bachan Mahto, the third son of Khelawan Mahto. As per the plaintiff’s case, there was no partition effected in the family and the family of plaintiff and the defendants were living in jointness. 3. The defendants contested the suit and asserted that the partition had already been effected and names of Sukhari, Narayan and Shiv Bachan were entered into 3 Patna High Court SA No.119 of 2011 (7) P3 o/15/15 Khatiyan and their shares were separately disclosed. The defendants denied the geneology as put forth by the plaintiff and asserted that Sukhari did not die issueless, rather he left behind two daughters, namely, Shiv Kali Devi and Rajkali Devi. The defendants further asserted that Mahendra Bhagat had a daughter Jiyani Devi also who was not impleded as party. It was further pleaded that Dev Rati Devi was daughter of Bhola Mahto who was not impleaded as party. They took objection of non-joinder of necessary parties for not impleading the daughters, as named above, as party defendant in the suit. Accepting the partly objection on geneology as raised by the defendants, the plaintiff by way of amendment impleaded Deo Rati Devi and Jiyani Devi as party defendant in suit. 4. The defendants contended in their written statement that Khelwan Mahto had two wives. Sukhari and Narayan Mahto were born out of the first marriage, whereas Shiv Bachan was born out of the second wedlock. Sukhari, Narayan and Shiv Bachan had separated before the revisional survey in food and residence and after having 4 Patna High Court SA No.119 of 2011 (7) P4 o/15/15 partitioned the properties of the joint family they were in separate possession and enjoyment of the properties. The defendants further pleaded that Sukhari and Narayan had re-united before revisional survey and Sukhari Mahto was the karta of the said family. Sukhari died in the year 1936 leaving behind his daughters whose properties devolved upon Narayan Mahto by survivorship. The defendants further asserted that Shiv Bachan had pre-deceased Sukhari in the year 1936. Narayan died in the year 1972. The defendants further pleaded that Sukhari and Narayan had acquired sikmi right over certain land and Shiv Bachan had no connection with such land. On the basis of such pleadings, the defendants contended that land appertaining to Keshra No. 749 and 750 came in possession of Narayan Mahto by virtue of Sikmi rights which the defendants acquired by inheritance and the plaintiff and his sisters Jiyani Devi, together had 1/3rd share, whereas defendants 1 to 3 and 5 had right over 2/3rd share over rest of the property which was partitioned long back. 5. On the basis of the pleadings of the parties 5 Patna High Court SA No.119 of 2011 (7) P5 o/15/15 learned trial Court framed altogether 7 issues including issue nos. 4,5 and 6 which are as follows:- “4. Whether Khelwan Bhagat had performed two marriages and Sukhari and Narayan were born as first marriage, whereas Shiv Bachan was born from second marriage? 5. Whether the plaintiff and defendants have joint possession over the suit property? 6. Whether the plaintiff is entitled for a decree of partition and then he is entitled to how much share?” 6. After the issues having been framed the parties led their respective evidence, both oral and documentary. Learned trial Court, on the basis of the evidence came to a finding that there was no clear evidence in support of defendant’s plea that Khelawan Mahto had two wives. On the question of partition also learned trial Court came to a finding that there being presumption of jointness in Hindu Family, the defendant could not prove by oral and documentary evidence that there was previous partition in the joint family and thus, decided issue no.5 in favour of the appellant/plaintiff and against the defendant. In view of such findings learned trial Court decided issue no. 6 also in favour of the plaintiff giving a finding that the defendants 6 Patna High Court SA No.119 of 2011 (7) P6 o/15/15 and plaintiff had joint possession over the suit property and rejected the defendant’s claim of the previous partition. The learned trial Court, accordingly, decreed the suit in favour of the appellant/plaintiff. 7. Learned first appellate Court, however, after considering the evidence on record, both oral and documentary and also taking into account, the conduct of the parties came to a finding that the plaintiffs had been living in separation in food and agriculture and in separate residential houses and they had been in possession of their respective shares in the properties. Learned first appellate Court also came to the conclusion that the parties had been dealing with the properties separately. On the basis of analysis of evidence available on record and other circumstance, learned First Appellate Court came to a finding of fact that the suit property could not be termed as joint. 8. Learned first appellate Court relied upon judgment of this Court reported in AIR 1971 Patna 215 ( Arjun Mahto Vs. Monda Mahatain) as well as AIR 1991 7 Patna High Court SA No.119 of 2011 (7) P7 o/15/15 Patna 01 ( Ganesh Sahu and another Vs. Dwarika Sao and others), whereby this Court has held that if there was separation in food and agriculture as also residence in a joint family, the cumulative effect of such fact might show that there had been partition in the family, and accordingly dismissed the suit and allowed the appeal. Hence this second appeal on behalf of the plaintiff. 9. Learned counsel for the appellant, assailing the judgment of the first appellate Court has contended that the judgment of the learned first appellate Court is not in compliance with the order 41 Rule 31 of the Code of Civil Procedure inasmuch as it did not formulate the points for consideration and there is no decision, therefore, on such points. The said judgment, therefore, cannot be said to be a judgment within the meaning of Order 41 Rule 31 of the Code of Civil Procedure which according to him raises a substantial question of law which the present second appeal involves. He has further submitted that the first appellate Court has not assigned cogent reasons for disturbing the findings of fact and rejecting evidence of plaintiff-witnesses 8 Patna High Court SA No.119 of 2011 (7) P8 o/15/15 and for this reasons also the judgment of the first appellate Court is not sustainable. 10. Learned counsel for the respondents, on the other hand, has submitted that there is no substantial question of law involved in the present second appeal. On the basis of the evidence adduced in course of trial by the parties, the Courts were required to give a finding of fact as to whether there was previous partition in the family or not in the partition suit filed by the plaintiff. Defending the judgment of the learned first appellate Court, he submits that evidence of all the witnesses examined in course of trial have been discussed by the first appellate Court in detail with reference to the issues framed in course of trial and there is thus, substantial compliance of Order 41 Rule 31 of the CPC. 11. Referring to the oral and documentary
Legal Reasoning
of the matter the said judgment of this Court in case of Dina Nath Yadav (supra) was based on appreciation and appraisal of evidence on record as the first Court of appeal. 16. I am of the opinion that the learned counsel for the respondents is right in placing reliance upon judgment of this Court reported in Arjun Mahto (Supra) which applies in the facts and circumstances of the case. Paragraphs 6,7, and 13 are relevant and are being quoted hereinbelow:- “6. In this case, admittedly, there is no 14 Patna High Court SA No.119 of 2011 (7) P14 o/15/15 formal document of partition. Still, the partition can be proved by the intention of the parties manifested by their subsequent conduct by their sole and independent enjoyment of the properties ( See. Budha Mal V. Bhagwan Das, ( 1891) ILR 18 Cal 302 (PC). 7. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. 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 remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time. AIR This principle has been expounded by the Supreme Court in Bhagwan Dayal Vs. Mst. Reoti Devi When no contemporaneous documents are available, the question whether the parties remained united or separate is to be decided on the facts of each case. 1962 Sc 287. Relying on a decision in Mukhram Rai Vs. Chandradeep Rai, AIR 1936 Pat 68, Mr. Mazumdar strenuously argued that where parties have been in possession of and exercising rights of ownership over separate blocks of land for a long time, the Court might well presume that these lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude their being repartitioned. Fazl Ali J., as he then was, relying on a Privy Council decision in Yellappa Ramappa V. Tipanna, ILR 53 Bom 213= ( AIR 1929 PC 8) has observed: “In the present case the parties have been in possession of and have been exercising rights of ownership over separate blocks of land for such a 15 Patna High Court SA No.119 of 2011 (7) P15 o/15/15 long time and in such a manner that a Court might well presume that these lands have been already divided and the rights of the parties defined in regard to them in such a manner as to preclude their being repartitioned.” 13. 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 not conclusive to prove the partition., but the cumulative effect of such facts may show that there had been partition between the brothers during their lifetime. In this connection, it is profitable to refer to the decision of the Privy Fakirgowda V. Council Somayyagowda, AIR 1930 PC 93.” Gangabai in
Arguments
evidence as discussed by the Courts below learned counsel for the respondents has submitted that there was sufficient evidence to show that there was separation in food and residence among sons of Khelawan Mahto since before 9 Patna High Court SA No.119 of 2011 (7) P9 o/15/15 revisional survey. He further submitted that there was sufficient evidence that the plaintiff and family of plaintiff and defendants were in separate possession and enjoyment of the properties. He submits that the trial Court had wrongly decreed the suit on the basis that there was no documentary evidence to prove the story of partition as asserted by the defendants and according to him, learned first appellate Court rightly took into account the evidence of the parties manifested by their subsequent conduct by their sole and independent enjoyment of the properties. 12. On the basis of the rival submissions made on behalf of the parties, I find that only question which the present appeal involves as to whether the parties to the suit were living in jointness at the time of the presentation of the suit or there was already partition in the family as asserted by the defendants. For the purpose of the present second appeal the points which need to be considered is as to whether the finding of fact arrived at by the first appellate Court can be said to be perverse being contrary to any evidence on record or such finding are without any 10 Patna High Court SA No.119 of 2011 (7) P10 o/15/15 evidence on record. This also needs to be considered as to whether the first appellate Court applied provision of law wrongly, thus, substantially affecting or causing prejudice to the cause of the plaintiff/appellant so as to raise a substantial question of law, within the meaning of Section 100 of the Code of Civil Procedure. 13. As regards the submission made on behalf of the appellants, assailing the judgment of the first appellate Court that the judgment was not sustainable because reasons for differing from lower Court judgment are not specifically stated in the judgment, I am of the view that learned first appellate Court has dealt with oral evidence and recorded reasons for reaching to its own conclusion. It has also recorded specific reasons in its judgment as to why the evidence of P.W. 5 in support of jointness in the family was not acceptable, as he happened to be the own brother- in-law of the plaintiff. From the judgment of the first appellate Court, it will appear that P.W.4 admitted that the parties were separate in their kitchen. Learned first appellate Court on appraisal of the evidence on record, 11 Patna High Court SA No.119 of 2011 (7) P11 o/15/15 thus, came to a finding that there was no jointness in the family. 14. In view of the rival submissions made on behalf of the parties, I am of the view that the fact that reasons for differing from the Lower Court judgment are not specifically stated in the judgment is not an itself a ground of second appeal where reasons are evident and it was otherwise clear that the evidence has been considered in arriving at finding. Reference may be made in this regard to a judgment of the Apex Court reported in AIR 1963 S C 302 ( V. Ramachandra Ayyar and another V. Ramalingam Chettiar and other). So far as the correctness or otherwise of the findings of fact arrived at by the first appellate Court is concerned, setting aside the judgment and decree of the trial Court, as has been laid down by the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others reported in ( 1993) 3 SCC 722, it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact. Hon’ble Supreme Court held in the judgment that in a case 12 Patna High Court SA No.119 of 2011 (7) P12 o/15/15 from a given set of circumstance two inferences are possible, one drawn by lower appellate Court is binding on High Court in second appeal and adopting any other approach is not permissible. Paragraph 5 of the said judgment lays down the law which reads as follows:- “5.It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is ture that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous, being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 15. So far as the judgment of this Court in case of Dina Nath Yadav Vs. Kusum Devi reported in 2000(2) PLJR 522 relied upon on behalf of the learned counsel for the 13 Patna High Court SA No.119 of 2011 (7) P13 o/15/15 appellant is concerned, there is no controversy over the legal proposition that every Hindu family is presumed to be joint unless proved other wise. The said judgment will not have application in the present case as in that case ( Dina Nath Yadav, supra) the defendant could not prove that the parties were living separately in the joint family property. Here there are materials on record which have been discussed by the first appellate Court to reach to its finding that the parties were separate in food and residence and keeping in mind other circumstances held that there was partition in the family of the parties to the suit. In any view
Decision
17. In view of the above discussion and in view of the law laid down by this Court in case of Arjun Mahto Vs. Munda Mahtain ( supra) as quoted herein above, I am of the view that the present appeal does not involve any substantial question of law and is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-