Bishrampur, District- Palamau .... .... … v. 1. Muni Sao, 2. Bheta Sao, 3. Sheo Sao, 4. Harihar Sao, all sons
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.134 of 2022 ------ (Against the judgment dated 27.05.2022 passed by the learned District Judge-II, Palamau in Partition Appeal No.05 of 2002) Parshuram Gupta, aged about 78 years, son of Late Shyam Narain Gupta, resident of Village & PO: Nawa Bazaar, PS: Bishrampur, District- Palamau .... .... …. Defendant No.1/Respondent No.2/Appellant Versus 1. Muni Sao, 2. Bheta Sao, 3. Sheo Sao, 4. Harihar Sao, all sons of Late Narain Sao, residents of Village & PO: Nawa Bazaar, PS: Bishrampur, District- Palamau 5. Malti Devi, wife of Radhe Shyam Gupta and daughter of Late Narain Sao, resident of Village- Obra, PO & PS: Obra, District- Aurangabad (Bihar) 6. Shri Manikchand Sao, son of Late Deni Sao, 7. Shri Suresh Prasad Gupta, 8. Sri Naresh Prasad Gupta, 9. Sri Rabinder Prasad Gupta, 10. Sri Sanjay Kumar Gupta, 11. Sri Udai Prasad Gupta, sons of Shri Manikchand Sao, residents of Village- Baralota, PO & PS: Daltonganj, District- Palamau
Legal Reasoning
(1 to 11 are Legal Heirs of Defendant No. 23- Narain Sao) 12. Most. Fekani Devi, widow of Late Rambrikash Sao, 13. Madan Prasad, 14. Krishna Prasad, both sons of Late Rambrikash Sao, 15. Pappu Prasad, 16. Chandan Prasad, both sons of Late Murli Shyam Gupta, 17. Most. Tarawati Devi, widow of Late Murli Shyam Gupta, 18. Suresh Prasad Gupta, son of Late Kapurchand Sao, 1 S.A. No.134 of 2022 19. Sudarshan Prasad, 20. Rabindra Prasad, both sons of Late Ganesh Sao, 21. Most. Pankuar Devi, widow of Late Ganesh Sao, 22. Lalmohan Sao, 23. Lakhan Sao, both sons of Late Moti Sao, 24. Kedar Prasad Gupta, 25. Lal Bahadur Sao, both sons of Late Sitaram Sao, 26. Most. Raj Keliya Devi, widow of Late Sitaram Sao, 27. Sudama Sao, son of Late Bhikhar Sao, r/o Vill- Sahpur, PO + PS + District- Aurangabad, All are residents of Village & PO: Nawa Bazaar, PS: Bishrampur, District- Palamau 28. Most. Nirmala Kuer, widow of Late Surendra Sao, both are residents of Village & PO: Nawa Bazaar, PS: Bishrampur, District- Palamu 29. Kamli Sahun, wife of Bigan Sao, 30. Lila Sahun, wife of Naresh Sao, both residents of Village, PO & PS: Rehla, District- Palamau 31. Urmila Sahun, wife of Madan Sao, resident of Village- Hatt Dohar, PO: Godarmana, PS: Ranka, District- Garhwa 32. Most. Bimali Kuer, widow of Late Kirpal Sao, resident of Village & PO: Nam Nagar, PS: Tandwa, District- Aurangabad(Bihar) 33. Parmila Sahun, widow of Late Mohan Sao, resident of Village, PO & PS: Deo, District- Aurangabad (Bihar) 34. Aasha Sahun, wife of Ajyodhaya Sao, resident of Village, PO & PS: Barun, District- Aurangabad (Bihar) (No.28 to 35 are legal heirs of Plaintiff- Ram Awatar Sahu) .... .... …. Plaintiffs/Appellants/Respondents 35. Vijay Kumar Gupta, 36. Anil Kumar Gupta, both sons of Late Shyam Narain Gupta, Both are residents of Village & PO: Nawa Bazaar, PS: Bishrampur, District- Palamau 2 S.A. No.134 of 2022 37. Rajendra Prasad, 38. Mahendra Prasad, 39. Gopal @ Surendra Prasad, all sons of Late Ram Prasad Gupta, residents of village & PO: Nawa Bazaar, PS: Bishrampur, District- Palamau, At present no. 38 to 40 are residents of Town Ward No. 10, Hospital Road, PO & PS: Daltonganj, District- Palamau, No.39 is at present residing at M/s Ajanata Tiles, E-16, Udyog Nagar, PO & PS: Naini, District- Allahabad (Prayagraj) – 211 008 (Uttar Pradesh) 40. Girish Kumar @ Shankar Prasad, son of Late Nathuni Sahu, resident of Gaighat, Ashok Rajpath, PO & PS: Alamganj, District- Patna (Bihar)
Legal Reasoning
41. Asha Devi, wife of Sri Nawal Prasad Gupta, (both are legal heirs of Defendant No. 9- Sharda Sahun), both are residents of Village- Japla (near Chauk Indra), at & PO: Japla, PS: Hussainabad, District- Palamau 42. Durga Sahun, wife of Arjun Sao, resident of At & PO: Deo, PS & District: Aurangabad (Bihar) 43. Shakuntala Sahun, wife of Sheo Prasad, resident of Village- Odan, PO: Pochara, PS & District- Latehar 44. Ravi Gupta, 45. Gandhi @ Vijay Gupta, 46. Patel @ Om Prakash, 47. Anu Gupta, all sons of Late Kishori Devi and Late Ram Mohan Ram, residents of 16/2A, Doker Lane, PO & PS: Baliganj, Kolkata, District- Howrah – 700 029 48. Most. Bimla Sahun, widow of Late Ram Lakhan Prasad, resident of C/o Dr. R. S. Sinha, Shanti Niketan, 139, New Area, Hinoo, PO & PS: Doranda, District- Ranchi, 49. Most. Kamla Sahun, widow of Late Shyam Sundar Sao, resident 3 S.A. No.134 of 2022 of C/o Basudeo Prasad, Hardware Merchant, Ramna Bazaar, PO & PS: Ramna, District- Gaya (Bihar) 50. Uttam Kumar, son of Rajendra Sahu, resident of Main Bazaar, Chatra PO, PS & District- Chatra 51. Jugal Sahu, son of Basudeo Sahu, resident of Village & PO: Nawa Bazaar, PS: Bishrampur, District- Palamau 52. Pancham Sahu, 53. Chhotu Sahu, both sons of Mathura Sahu, residents of Village & PO: Maharajganj, PS: Kutumba, District- Aurangabad (Bihar) 54. Malti Sahun, D/o Late Nathuni Sahu, C/o Girish Kumar Gupta of Gaighat, P.O.- Gulzarbagh, Patna, Dabar India Ltd., Patna- 20 .... .... …. Defendants 1st Set/ Respondents/ Respondents For the Appellants : Mr. Rahul Kr. Gupta, 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. 2. This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of reversal dated 27.05.2022 passed by the learned District Judge-II, Palamau in Partition Appeal No.05 of 2002 whereby and where under the learned District Judge-II allowed the appeal on contest and reduced the share allotted to the appellant of the Second Appeal who was the defendant No.1 of Partition Suit No.81 of 1996 of the court of Sub-Judge IV, Palamau at Daltonganj from 1/4th to 1/10th. 3. The brief facts of the case is that the plaintiff whose legal representatives have been impleaded as respondent Nos.28 to 34 of this second appeal filed suit for partition with respect to the suit land claiming for carving out 1/4th share from the suit land. 4 S.A. No.134 of 2022 4. The case of the plaintiff in brief is that the parties to the suit were governed by the Mitakshara School of Hindu Law and the suit property is the joint family property. Rupu Sao was the common ancestor of the parties to the suit. Rupu Sao had two sons- Bharosa Sao and Jatan Sao. Jatan Sao had one son- Basudeo Sao and Basudeo Sao had two sons- Ram Awatar Sao who is the plaintiff and Jugal Sao who is the defendant No.20 of the suit. As per the case of the defendant Nos.1 to 4, Bharosa Sao had only one wife namely Bakasia @ Batasia Sahun whereas as per the remaining defendants, Bharosa Sao had two other kept namely Naulakho Sahun and Magadhia Sahun. According to the defendant Nos.1 to 4, Rambaso @ Rambasia Sahun was the only daughter of Bharosa Sao, through Bakasia Sahun, whereas as per the case of the rest of the defendants, Bharosa Sao had five daughters. Through Naulakho Sahun, Bharosa Sao had three daughters namely Soniya Sahun, Dukhani Sahun, Daulati Sahun and through Magadhiya Sahu, he had two daughters namely Rajmani Sahun and Rambaso @ Rambasia Sahun. 5. On the basis of the rival pleadings of the parties, the trial court settled the following six issues:- (i) Is the suit as framed maintainable? (ii) Has the plaintiff any valid cause of action for the suit? (iii) Is there unity of title and unity of possession in respect of the suit land between the parties? (iv) What is the share of each of the parties in the suit and whether the claims of the defendant no. 1 to 22 is maintainable in respect of share? (v) Whether the defendant no. 23 to 39 are also share holders in the suit property? (vi) Is the plaintiff entitled to share as claimed? 5 S.A. No.134 of 2022 6. The learned trial court first took up issue No.(iii) and came to the conclusion that in view of the admission of the parties in the suit, there is unity of title and possession over the suit land. The learned trial court next took up issue Nos.(iv), (v) and (vi) together and after considering the evidence in the record, came to the conclusion and held that suit property is to be partitioned by metes and bounds and the plaintiff is entitled to 1/4th share. The plaintiff and the defendant No.20 each are entitled to 1/4th share each. The defendant Nos.1 to 4 and 9 to 11 together will get 1/6th share. The defendant Nos.5 to 7 and 12 to 18 together will get 1/6th share and the defendant Nos.8, 21 and 22 together will get 1/6th share and further ordered that if the defendant Nos.5 to 22 relinquish their claim over the suit property before the Survey Knowing Pleading Commissioner appointed for partition of the shares then, defendant Nos.1 and 2 will get the share of defendant Nos.5 to 19, 21 and 22 and the defendant Nos.23 to 29 will get only 3.58 acres of land already allotted to them during the lifetime of Bharosa Sao which was subsequently mutated in their name, without any objection from rest of the parties to the suit. 7. Being aggrieved by the judgment and decree passed by the learned trial court, the defendant Nos.23 to 39 filed partition appeal No.05 of 2002 before the Principal District Judge, Palamau which was ultimately heard and disposed of by the learned first appellate court. The learned first appellate court on the basis of the materials available in the record and the submissions made before it, formulated following three points for determination:- (i) Whether Bharosa Sao died leaving behind his wife Naulakhiya and sole daughter Rambasiya Devi or Bharosa Sao died leaving behind his five daughters namely Sonia Sahun, Dukhani Sahun, Dalauti Sahun, Rajmani Sahun and Rambaso Sahun. 6 S.A. No.134 of 2022 (ii) Whether the appellants/defendant no. 23 to 39 are descendants of legally wedded wife of Bharosa Sao or not? (iii) Whether some portion of the suit land converted into tanr land or not? 8. The learned first appellate court first took up point for determination No.(i) and after making independent appreciation of the evidence available in the record, considered the case of the defendant Nos.1 to 4 that Bharosa Sao had two kept namely Naulakho @ Naulakhiya and Magadhia Sahu and during his life time, Bharosa Sao had given 3.5 acres of land for their maintenance. 9. The learned first appellate court further considered that the defendant Nos.1 to 4 further pleaded that the defendant Nos.23 to 39 having been born through the said two kept namely Naulakho @ Naulakhiya and Magahia and there has not been any progeny of Bharosa Sao through his legally married wife Batasia; hence, they are not entitled to any property except 3.5 acres given by Bharosa Sao to them for their maintenance during his life time. 10. The learned first appellate court considered that the plaintiff and the defendant No.2 who are the co-shares, have deposed that Bharosa Sao had five daughters. The learned first appellate court observed that the trial court misread the Ext.K which is the application for mutation before the Manager Encumbered Estate, Bishrampur, wherein it has categorically been mentioned that Bharosa Sao had three wives- Naulakha, Magahia and Bakasiya. Hence, though the trial court has believed the Ext.K, the learned trial court has committed a gross illegality by not considering the daughters of Naulakhiya and Magahia being the legal hairs of Bharosa Sao in equal footing with, Rambasia- the daughter of Bharosa Sao through Bakasia Sahun, and went on to hold that the defendant Nos.1 to 4 failed to establish that Bakasia @ Batasia was 7 S.A. No.134 of 2022 the only legally wedded wife of Bharaso Sao. Naulakhiya and Magahia were kept of Bharaso Sao. 11. The learned first appellate court also considered that marriage of Bharosa Sao took place before 1956 before the Hindu Marriage Act came into existence and at that time, polygamy was legal under Hindu Laws. The learned first appellate court then considered that since the claim of defendant Nos.1 to 4 was that Naulakho and Magahia were not the legally married wife of Bharaso Sao. Hence, the burden was obviously upon them to prove the same, but they did not succeed in establishing the same and the learned first appellate court went on to hold that the appellants before it who were the defendant Nos.23 to 39 of the suit, are jointly entitled to 4/10th share of the half share of Bharaso Sao. The respondent Nos.2 to 4 before it, were entitled to 1/10th share out of half share of Bharaso Sao. 12. Learned counsel for the appellant submits that the appellate court has committed illegality by shifting the burden of proof upon the defendant Nos.1 to 4 on the point of status of defendant Nos.23 to 39 being descendants of Bharosa Sao; especially when they were settled an area of 3.5 acres of land for the purpose of their maintenance. It is next submitted that the learned first appellate court erred in not taking into consideration the fact that the recorded tenant Bharosa Sao had only one married wife namely Batasia @ Bakasia Sahun; as in Ext.K , after the name of Bakasia Sahun, the word ‘Beahi’ has been mentioned. It is, therefore, submitted that the judgment and decree passed by the learned first appellate court, be set aside and the judgment and decree passed by the learned trial court be restored after formulating appropriate substantial questions of law. 8 S.A. No.134 of 2022 13. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that law leans in favour of legitimacy and frowns upon bastardy; in case of birth of child from continuous co-habitation of a man and woman by observing thus in paragraph-15 of the judgment in the case of Tulsa & Others vs. Durghatiya & Others reported in (2008) 4 SCC 520 paragraph-15 of which reads as under:- “15. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See Badri Prasad v. Dy. Director of Consolidation [(1978) 3 SCC 527 : AIR 1978 SC 1557] .)” (Emphasis supplied) 14. The undisputed fact remains that the ancestors of the defendant Nos.23 to 39 has been born out of the co-habitation between Bharosa Sao and two women namely Naulakho @ Naulakhia and Magahia. Under such circumstances, there has been strong presumption in favour of the wedlock between Bharosa Sao and Naulakhia as well as Magahia, keeping in view the fact that there was no bar for polygamy of Hindu before coming into force of the Hindu Marriage Act, 1955. It is an admitted case that Bharosa Sao and Naulakhia as well as Magahia lived together for long spell as husband and wife. It is also a settled principle of law that burden lies on the parties to assert a fact as has been reiterated by the Hon’ble Suprme Court of India in the case of Smriti Debbarma (Dead) through Legal Representative vs. Prabha Ranjan Debbarma and Others reported in 2023 SCC Online SC 9 paragraph-35 of which reads as under:- “35. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims 9 S.A. No.134 of 2022 relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. Thus, the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment and decree of the trial court. We, therefore, uphold the findings of the High Court that the suit should be dismissed. We clarify that we have not interfered or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants' claim etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the present proceedings.” 15. Under such circumstances, since the defendant Nos.1 to 4 were asserting that the ancestor of the defendant Nos.23 to 39 were not the daughter of Bharosa Sao through his legally wedded wife; the learned first appellate court has not committed any error by shifting the burden on establishing the same upon the defendant Nos.1 to 4. So, this court do not find any illegality on this score. 16. So far as the contention of the appellant that as Bharosa Sao gave 3.58 acres of land to his daughter through Naulakho and Magahia being the defendant Nos.23 to 39 hence, they are not entitled to any more property of the Bharosa Sao is concerned, this Court do not find any merit in such contention because the question of partition of a common ancestor arises only after his death. If a person during his life time gives any property to his progeny or wife 10 S.A. No.134 of 2022 out of lave or otherwise, certainly that will not debar the person who is benefitted by such gift from claiming partition and share, which is otherwise entitled from the property of the person who has gifted after death of such person. Hence, this court is of the considered view that no perversity has been committed by the first appellate court in arriving at the finding of fact that the ancestor of the defendant Nos.23 to 39, who were born through Naulakho and Magahia, are having equal rights as that of the defendant Nos.2 to 4 who were claiming inheritance through the other daughter of Bharosa Sao namely Rambasia Sahun who was born through Bakasia Sahun, the wife of Bharaso Sao. 17. Under such circumstances, this court is of the considered view that there is no substantial question of law involved in this appeal. 18. Accordingly, this Second Appeal, being without any merit, is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th of September, 2024 AFR/ Saroj 11 S.A. No.134 of 2022