Marani Devi v. Marachhiya Devi

Patna High Court SA No.724 of 2010 (6) dt.01-02-2013 2

23. Harihar Rai son of late Bhagirath Rai. 24. Kailash Rai son of late Anandi Rai. 25. Braj Mohan Rai son of late Ganga Bishun Rai. 26. Krishnandan Rai @Krishna Nandan Rai son of late Ganga Bishun Rai. 27. Arun Rai son of late Ganga Bishun Rai. 28. Anuj Rai son of late Ganga Bishun Rai. 29. Dinesh Rai son of late Lal Rai. 30. Danesh Rai son of late lala Rai, all residents of village-Arara, P.O.- Dharhara, P.S.- Hajipur Sadar, Anchal-Hajipur, District-Vaishali. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Satya Prakash Sinha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 6 01-02-2013 Heard Mr. Satya Prakash Sinha, the learned counsel appearing on behalf of the appellants. The defendants are the appellants in this appeal against the judgment of affirmance in a suit for partition. The plaintiffs filed the suit for partition of their share in the suit property. It was the case of the plaintiffs that the suit land was the ancestral property of Sri Rai and after his death it was inherited by his two sons Kripali Rai and Ritu Rai. Kripali Rai died leaving behind his widow Kuniya Devi and two daughters Rajiya Devi and Rajpatiya Devi. Kuniya Devi transferred her share in the property to her daughter Rajpatiya Devi and her grandson Harishankar Rai. Ritu Rai had a son Ram Prasad Rai who died leaving behind his widow Surji Devi and three daughters namely Patna High Court SA No.724 of 2010 (6) dt.01-02-2013 3 Marachiya Devi and Jagpatiya Devi who are the plaintiffs, and Marni Devi who is defendant no. 1 in the suit. Surji Devi by gift deed dated 23.12.1972 transferred 1 Bigha 16 katha land to her three daughters. Surji Devi and Rajiya Devi also sold some lands to defendant 2nd set. It was further case of the plaintiffs that the defendant 3rd set Lal Babu Rai fraudulently got executed a sale deed dated 18.02.1981 from Surji Devi for 3.36 acres of land and on that basis he transferred some land in favour of defendant no. 10 to 21. The plaintiffs have asserted that after the execution of the gift deed, Surji Devi was left with no land in her share to transfer to the defendant 3rd set, and Surji Devi, after getting the knowledge of the sale deed, had also sent legal notice to the defendant 3rd set denying the valid execution of the sale deed in his favour. It is the claim of the plaintiffs that the descendants of Kripali Rai and Ritu Rai have got unity of title and jointness of possession for the suit land to the extent of ½ share of each branch and the plaintiffs have claimed 2/3 share out of ½ share of the branch of Ritu Rai and the remaining 1/3 share to the defendant no. 3 Marani Devi. The defendant no. 1 and 9, and the defendant no. 10 to 21 who are purchasers from them filed their contesting written statements. The other defendants have supported the case of the plaintiffs in their written statement. The main defence of the contesting defendants was the Patna High Court SA No.724 of 2010 (6) dt.01-02-2013 4 denial of the genealogy as given by the plaintiffs and assertion that the suit property exclusively belonged to Ram Prasad Rai and after his death, it was exclusively inherited by his widow Surji Devi and therefore after the execution of the gift deed in favour of her three daughters, she was entitled to 3.36 acres of land which she validly transferred to the defendant 3rd set Lal Babu Rai. The existence of Kripali Rai was categorically denied. The trial court after considering the pleadings and evidence of the parties came to the finding that Kripali Rai and Ritu Rai were full brothers having ½ share each in the ancestral property. It was also found that Surji Devi was left with no share in the suit land after the execution of the gift deed by her in favour of her three daughters and thus the sale deed by her in favour of 3rd set was held to be void. After finding unity of title and jointness of possession between the plaintiffs and the defendant 1st set, the suit was decreed. The appeal was filed only by the defendant no. 1 and her husband defendant no. 9 Lal Babu Rai assailing the judgment and decree of the trial court. The appellate court, after reappraisal of evidence, has concurred with the findings of the trial court and dismissed the appeal. It has been found by the appellate court that the defendant no. 1 and her husband defendant no. 9, after filing joint written statement did not produce oral or documentary Patna High Court SA No.724 of 2010 (6) dt.01-02-2013 5 evidence to support their case nor did they appear as witness to support the averments made in their written statement. Similarly the other defendants except defendant no. 3, have also been found not to have adduced oral or documentary evidence to support their case. The defendant no. 3 has been found to have supported the case of the plaintiffs. This second appeal has been filed by the defendant no. 1 Marani Devi and her husband Lal Babu Rai who was defendant no. 3rd set in the suit. It has been firstly submitted by the learned counsel for the appellants that both the courts below have not properly considered the evidence and have not got into the question whether the plaintiffs have succeeded in establishing their right in the suit property. It has been further urged by the learned counsel that the decree was passed against dead persons as five of the defendants were dead during the pendency of the suit and on that basis it has been contended that the decree is nullity. It is manifest from the perusal of the judgments of both the courts below that the evidence has been led only by the plaintiffs and the defendant no. 3 who has supported the case of the plaintiffs. The contesting defendants including the present defendants after filing the written statement, did not chose to lead oral or documentary evidence in support of their case as pleaded that Ram Prasad Rai was the only descendant of Sri Rai and was Patna High Court SA No.724 of 2010 (6) dt.01-02-2013 6 the last male owner of the family property and his widow Surji Devi had validly sold the property to the defendant 3rd set. They even did not choose to enter into witness box in support of their pleadings and offer them for cross examination. In absence of the proof of the pleadings by the contesting defendants both the courts below have rightly disbelieved the case as pleaded by them and have rightly come to the conclusion that the sale deed dated

18.02.1981 executed by Surji Devi in favour of defendant no. 9 is a nullity on the basis of the scrutiny of the evidence brought on record by the parties. It is also manifest that the appeal in the appellate court below as well as in this Court has been preferred only by defendant no. 1 and her husband defendant 3rd set. No other defendants including the transferees from defendant no. 1 and 9 have chosen to challenge the judgment and decree in the suit. Further, the submission with regard to decree becoming nullity, having been passed against five dead defendants, has also got no substance because the defendant no. 7 Ramdeo Rai, who is said to have died, had supported the case of the plaintiffs in his written statement and therefore the decree cannot be said to have been passed against him. The other four deceased defendants i.e. defendant no. 10, 13, 14 and 20 were the purchasers from the defendant 3rd set but they had chosen not to contest the suit after filing their written statement. Moreover their vendor who was Patna High Court SA No.724 of 2010 (6) dt.01-02-2013 7 defendant 3rd set in the suit was there to represent their interest and had in fact unsuccessfully tried to defend his title to the property which he had transferred to them by also preferring the appeals. It is also not the case of the appellants that such plea was ever raised by them either in the trial court or in the appellate court below. The appellants have also failed to establish as to how their interest is prejudiced by non-substitution of the heirs of their deceased transferees. It is, therefore, clear that this plea has been raised only for litigation sake. The issues arising between the parties have now been concluded by concurrent findings. No perversity in any manner in the findings of the courts below could be established on behalf of the appellants. In this view of the matter, there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)