Civil Appeal No. 28 of 2012 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.31 of 2020 ------ (Against the judgment dated 02.12.2019 passed by learned District Judge-IV, Dumka in Civil Appeal No.28 of 2012) ------ 1. Jagdamba Devi aged bout 67 yrs. wife of Late Thakur Singh 2. Kumar Singh aged about 35 yrs. son of Late Thakur Singh 3. Bablu Singh aged about 33 yrs. son of Late Thakur Singh 4. Ranjit Singh aged about 19 yrs. son of Late Thakur Singh 5. Kaushalya Devi aged about 27 yrs. daughter of Late Thakur Singh 6. Sabita Kumari aged about 20 yrs. daughter of Late Thakur Singh All resident of village – Beludabar, P.O. – Uper Bahal, P.S.- Jama, District- Dumka 7. Sonamuni Devi aged about 65 yrs. daughter of Late Sagu Singh @ Suglal Singh and wife of Sri Jairam Singh, resident of Village- Tetaria, P.O. – Hariharpur, P.S. – Taljhari, District - Dumka ....
Legal Reasoning
.... …. Defendants /Appellants/Appellants. Versus 1. Nazir Singh son of Late Siblal Singh. 2. Lakhan Singh son of Late Siblal Singh. 3. Mamta Singh son of Late Siblal Singh All resident of Village – Barmasia, P.O. – Uper Bahal, P.S.- Jama, District- Dumka .... .... …. Plaintiffs/Respondents/Respondents For the Appellants ------
Legal Reasoning
: Mr. Rajiv Nandan Prasad, Advocate Mr. Manoj Kr. No.4, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellants. 1 S.A. No.31 of 2020 2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of affirmance dated 02.12.2019 passed by learned District Judge-IV, Dumka in Civil Appeal No.28 of 2012 by which the learned first appellate court has dismissed the appeal on contest and upheld the judgment and decree passed by the Senior Civil Judge- IV, Dumka (the correct designation is Civil Judge [Senior Divisions]-IV, Dumka). 3. The brief facts of the case is that the plaintiffs/respondents filed Title Partition Suit No.19 of 2007 for half share of the suit property described in Schedule A and B of the plaint and the consequential reliefs. The case of the plaintiffs in brief is that the parties to the suit are Hindus and are governed by Mitakshara School of Hindu Law. Lilu Singh was the common ancestor. He had two sons namely Jivan Singh and Bhagat Singh. The plaintiffs are the descendants of Lodo Singh S/o- Jivan Singh whereas the defendants are the descendants of Sadhu Singh @ Sag Lal Singh S/o- Bhagat Singh, thus, the plaintiffs claim half share of the suit property. 4. The defendants in their written-statement challenged the maintainability of the suit on various technical grounds and pleaded that the suit land has been partitioned amicably between the parties prior to Gantzer’s settlement, hence, there is no unity of possession and title between the parties. The defendants further pleaded that the present survey record was prepared on the basis of the possession hence, the same is a document of partition. 5. On the basis of the rival pleadings of the parties, the learned trial court framed the following eight issues:- (i) Is the suit maintainable in its present form? 2 S.A. No.31 of 2020 Have the plaintiffs valid cause of action for the present suit? Is the suit bad for non joinder of necessary parties? Is the suit bad for seeking partial partition? Is there unity of title and possession in between the parties? (ii) (iii) (iv) (v) (vi) Whether suit property had already been partitioned in between the parties? (vii) Are the plaintiffs entitled to the claimed relief/reliefs? (viii) To what other relief or reliefs the plaintiffs are entitled to? 6. In support of their case, the plaintiffs, examined five witnesses and proved the documents which have been marked Ext.1 to Ext.2/c whereas from the side of the defendants three witnesses were examined but no documentary evidence was adduced by the defendants. 7. The learned trial court first took up issue Nos.(iv), (v) and (vi) together and after considering the materials available in the record, came to the conclusion that the defendants have miserably failed to establish the previous partition by metes and bound between the parties rather the plaintiffs have fully proved their case regarding jointness of family and unity of title and unity of possession over the suit land, hence, the suit land is fit to be partitioned according to the respective shares of the plaintiffs and the plaintiffs are entitled to get half share in their branch in the suit property. 8. The learned trial court next took up issue Nos.(i), (ii) and (iii) together and after considering the materials in the record, decided the same in favour of the plaintiffs and against the defendants. 9. Lastly, the learned trial court took up issue Nos.(vii) and (viii) together and after considering the admitted genealogy of the parties, came to the conclusion that the plaintiffs Nos.1 to 3 being the grandsons of Lodo Singh are only entitled to half share in their branch and defendant Nos.1 and 2 are also 3 S.A. No.31 of 2020 entitled to half share of the suit property and decreed the suit preliminarily with the aforesaid apportionment of share. 10. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Civil Appeal No.28 of 2012 in the court Principal District Judge, Dumka which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment as already indicated above. 11. The learned first appellate on the basis of the materials and submissions made before it, formulated the following point for determination:- “A. Whether the judgment and decree passed and prepared by the Court below is just and proper or it requires any interference by this Appellate Court?” 12. The learned first appellate court considered the principle of law settled by the Hon’ble Supreme Court of India in the case of Adiveppa & Others vs. Bhimappa & Another reported in (2017) 9 SCC 586 paragraph-20 of which reads as under:- “20. In our considered opinion, the legal presumption of the suit properties comprising in Schedules B and C to be also the part and parcel of the ancestral one (Schedule D) could easily be drawn for want of any evidence of such properties being self-acquired properties of the plaintiffs. It was also for the reason that the plaintiffs themselves had based their case by admitting the existence of joint family nucleolus in respect of Schedule D properties and had sought partition by demanding 4/9th share.” and also the judgment of the Hon’ble Patna High Court in the case of Deoki Mallah vs. Surji Mallahain reported in 1999 (1) PLJR 199 wherein the Hon’ble Patna High Court has held that either in Mitakshara School or in Dayabhaga School the presumption is that unless a division is there either amongst the coparceners or the co-sharers, the property of the Hindu family 4 S.A. No.31 of 2020 remains joint and separation in mess, cultivation among the co-sharers do not mean that there was partition by metes and bounds and considering the fact that except the entry made in the remarks column of separate possession of the plaintiffs and the defendants in respect of the suit land, the defendants could not put forth any evidence in the record to suggest that there was partition by metes and bounds between the plaintiffs and the defendants, came to the conclusion that the suit property is still joint and has not yet been partitioned between the parties to the suit, hence, observed that the learned trial court has rightly decided the issue Nos.(iv), (v) and (vi) in favour of the plaintiffs and against the defendants. 13. So far as the contention of the appellants regarding the Civil Suit being barred by Section 11 of the Santhal Pargana Regulation, 1872 is concerned, the learned trial court considered that the title suit was filed before the Settlement Officer but the same was subsequently transferred to the court of Sub-Judge-I, Dumka as per Rule 5 A of the Santhal Pargana’s Settlement Regulation, 1872 (Regulation-III of 1872). Accordingly, the learned civil court acquired the jurisdiction to entertain the suit, hence, the same does not have any merit and thus, does not find any illegality in the judgment and decree passed by the trial court and upheld the judgment and decree and dismissed the appeal. 14. Learned counsel for the appellants submits that both the courts below have committed a serious error of law as well as of records in holding that the defendants have miserably failed to establish the previous partition by metes and bounds between the parties prior to Gantzer’s Settlement. It is next submitted that otherwise also the judgment and decree passed by both the courts below is perverse. Hence, it is submitted that the judgment and decree 5 S.A. No.31 of 2020 passed by both the courts below be set aside and the suit of the plaintiffs be dismissed. 15. Having heard the submission of the learned counsel for the appellants and after carefully going through the materials available in the record, it is pertinent to mention here that the relationship of the plaintiffs and the defendants respectively to the common ancestor Lilu Singh is not in dispute. It is not in dispute that the plaintiffs are the descendants of Lilu Singh through Lodo Singh whereas the defendants are the descendants of Lilu Singh through Sagu Singh. As has already been mentioned above, it is a settled principle of law that there lies a legal presumption that every Hindu Family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. So, the burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. It is also a settled principle of law that noting of Kabjawari in the revenue record does not prove separation or partition by metes and bounds and only gives analogy that there was separate cultivation or possession by the person in favour of whom Kabjawari has been recorded. 16. Now, coming to the facts of the case, since it was the defendants who pleaded prior partition by metes and bounds between the plaintiffs and the defendants so burden was obviously upon the defendants to establish the same. The defendants could not come up with any date or the share of each of the coparceners in any prior partition by metes and bounds. The only basis of the defendants claiming earlier partition is that separate recording of Kabjawari 6 S.A. No.31 of 2020 in the revenue record but it being the settled principle of law that separate possession mentioned in the revenue records in the remarks column is not a conclusive proof of a partition by metes and bounds between the parties so, therefore, this Court is of the considered view that both the courts below have not committed any perversity by holding that the defendants have failed to establish earlier partition between the parties to the suit by metes and bounds. 17. Under such circumstances, as the relationship between the parties is not in dispute and the fact that Lilo Singh was the common ancestor of the parties, is also not in dispute, hence, this Court has no hesitation in holding that neither of the courts below have committed any perversity in decreeing the suit of the plaintiffs preliminarily for partition allotting half share each to the plaintiff Nos.1 to 3 and defendant Nos.1 and 2. 18. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal. 19. Accordingly, this Second Appeal, being without any merit, is dismissed but under the circumstances without any costs. 20. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 12th of August, 2024 AFR/ Animesh (Anil Kumar Choudhary, J.) 7 S.A. No.31 of 2020