IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1793 of 2006 With C.R. No. 1925 of 2006 AZMAT ALI son of late Md. Israil resident of village Chandpura, P.S. Ichuapur, P.O. Chandpura, District Chapra, at present residing at mohalla Fulwari Sharief, Khagaul Road, Near Prakash Cinema Hall, P.S. Fulwari- Sharief, District Patna… …Plaintiff/Petitioner (in both the cases) Versus MUJIBUR RAHMAN son of late Md. Israil, resident of village Chandpura, P.S. Ichuapur, P.O. Chandpura, District Chapra, at present residing at mohalla Golghar, P.S. Gandhi Maidan, District Patna… … Defendant/Opposite Party (in both the cases) For the Petitioner: Mr. Raghib Ahsan, Sr. Advocate, M/s Kaushal Kishore Sharma and R.K. Sinha No. 2, Advocates For the Opp.Party: M/s Binod Kumar Singh and Dharmendra Kumar Raju, Advocates. ----------- 13.10.2009 Both the civil revisions, C.R. No. 1793 of 2006 and C.R. No. 1925 of 2006, are directed against the order dated 02.08.2006 passed by the Sub Judge III, Patna in Title Partition Suit No. 109 of 2000. By the order dated 02.08.2006 the concerned court has disposed of the petition filed by the petitioner under Order XII Rule 6 of the Code of Civil Procedure (hereinafter to be referred to as “the Code”) in Title Partition Suit No. 109 of 2000 as well as the petition filed by the defendant opposite party for analogous hearing of 2 Title Partition Suit No. 109 of 2000 with Title Partition Suit No. 157 of 2001. Both the petitions were disposed of by common order aforesaid. However, Civil Revision No. 1793 of 2006 has been filed by the plaintiff-petitioner of Title Partition Suit No. 109 of 2009 against that part of the order, whereby the petition filed under Order XII Rule 6 of the Code has been rejected, whereas Civil Revision No. 1925 of 2006 has been filed by him with respect to the part of the order dated 02.08.2006, whereby both the Title Partition Suits have been made analogous. In view of the above, both the Civil Revisions have been heard together and are being disposed of by this common order. I have heard learned counsel for the petitioner and the opposite party in both revisions and have perused the records. The plaintiff-petitioner had filed Title Partition Suit No. 109 of 2000 for partition of the house standing over 1 katha 5 dhurs and 16 dhurkis of land of mohalla Golghar, Bankipur, Patna to the extent of his half share. The defendant-opposite party appeared and filed written statement. Subsequently, a petition had been filed on 3 behalf of the plaintiff-petitioner under Order XII Rule 6 of the Code with a prayer to pronounce the judgment on the basis of admission by the defendant in his written statement, whereby he had conceded that the plaintiff- petitioner is entitled for half share of the suit property. The defendant-opposite party had contested that application by filing a rejoinder. The trial court after hearing the rival submissions had rejected the claim of the petitioner on the ground that admission in fraction could not be taken into account for the purposes of taking decisions under the provisions of Order XII Rule 6 of the Code and has found that the contention of the petitioner was that not only the specific property described in the suit shall be partitioned, rather the entire joint property including this particular property should be partitioned, as the partition should not be fractional or in part, but the same should be complete. Parties have produced copies of the plaints and written statements filed in Title Partition Suit No. 109 of 2000 as well as Title Partition Suit no. 157 of 2001 for perusal of the Court at the time of hearing of these applications. 4 Learned counsel for the petitioner had drawn the attention of this Court towards the statement made in few paragraphs of the written statement including paragraphs 14, 18 and 26 etc. to impress upon the Court that the defendant had conceded that the property was joint with the plaintiff having half interest of each party and had further admitted the possession of the plaintiff apart from joint right and interest. It was also submitted that in paragraph 31 of the written statement the defendant- opposite party had clearly stated that he was ready to partition the property in the manner, as referred to above. In view of that, it had been submitted on behalf of the petitioner that nothing remained to be decided in this case and the judgment should have been pronounced by the court below accepting half and half share of the parties. That being the situation, it was also submitted that there was no question of any amalgamation of both the Partition Suits, as Title Partition Suit No. 109 of 2000 was fit to be decided on the ground of the admission on the part of the defendant-opposite party. Learned counsel for the defendant-opposite party had submitted in reply that admission by a party 5 could not be considered in part and the document or pleading would have to be read as a whole. It was urged that for taking a decision in view of the provisions of Order XII Rule 6 of the Code, the admission should be clear and distinct. It was further submitted that upon perusal of the entire written statement, it would be manifest that it was this defendant-opposite party, who had started the business and established the same and out of income he had purchased the property including the property in suit in Title Partition Suit No. 109 of 2000. But it was also stated that the petitioner had been inducted into the same for his benefit and the defendant-opposite party was ready to partition the property including the entire property as stated in the schedule of the written statement. However, he was not ready for partial partition. In paragraph 27 of the written statement he had denied that the holding was purchased out of separate income by the defendant and it was clearly stated in the written statement that after establishing the business and purchasing the property from his own pocket the defendant-opposite party inducted the plaintiff-petitioner in business. Further contention was that in paragraph 22 of the written 6 statement, it had been stated that upon the intervention of the local people, the plaintiff became ready to partition the entire property either purchased in his own name or in the name of the defendant or in the names of both the parties, but very cleverly the petitioner had filed the suit for partition of this specific property only. It was also stated in paragraph 31 of the written statement that the defendant has stated that he is ready to partition the property, as referred to above, only indicating that he was ready to partition the entire property. A bare reading of the statement made in paragraph 32 of the written statement could reveal that though the defendant was ready to partition the entire estate, but the plaintiff with oblique motive had mischievously filed the suit for partition of only one property. A prayer had also been appended with the written statement, whereby the defendant demanded partition of the entire property detailed at schedule A of the written statement. Thus, it was contended that a fraction or part of the statement made in the written statement cannot be carved out and considered for the purposes of pronouncing judgment under the provisions of Order XII Rule 6 of the Code. In support of his 7 submission, learned counsel had placed reliance upon a decision rendered by a Division Bench of this Court in Ganesh Prasad v. Jugeshwar Tewari and others, reported in 1969 Patna Law Journal Reports, 284. Learned counsel had drawn the attention of the Court towards paragraph 9 of the aforesaid decision, wherein this Court had held that part of written admission could not be used in favour of a party, who wanted to use it. Similar view has been taken by the Madras High Court in M. Manoharan Chetti and others v. M/s C. Coomaraswamy Naidu and Sons, reported in AIR 1980 Madras, 212, holding that for a court to draw an adverse inference against a party on the basis of what he had stated to have admitted, the admission must be unequivocal. Learned counsel has further placed reliance upon a decision of the Apex Court in Dudh Nath Pandey(dead by L.R’s) v. Suresh Chandra Bhattasali(dead by L.R’s), reported in AIR 1986 Supreme Court, 1509 to show that the admission must be taken as a whole and it is not permissible to rely upon a part of admission ignoring the other. The court below had also taken into consideration several pronouncements of different courts 8 and had come to the conclusion that the admission by the defendant was for the partition of the entire property in half and half share and not in respect of a particular property. Learned counsel further submitted that for the remaining properties, which were joint with the plaintiff and the defendant, the defendant-opposite party had filed Title Partition Suit No. 157 of 2001, which was also pending, and, thus, a prayer had been made for their analogous hearing. Having heard the rival submissions of the parties, this Court is also of the opinion that for the purposes of Order XII Rule 6 of the Code a truncated or part of the statement made in the written statement cannot be taken into account and the admission must be clear and unequivocal. In the present case, the defendant has clearly stated in the written statement that he is ready to partition the entire properties, which are joint amongst themselves, for which a separate suit has been filed and in the first suit i.e. Title Partition Suit No. 109 of 2000 also the schedule of such properties has been appended to the written statement and a prayer has been made to partition the 9 entire properties. Thus, the alleged admission of the defendant, as claimed by the petitioner, would be of no help for him for the purposes of Order XII Rule 6 of the Code and the judgment could not be pronounced only on the basis of that admission. Since the claim of the defendant that other properties are also joint in between the parties, which is clearly stated in the schedule appended to the written statement and specific statement has been made in the written statement in this regard with a prayer to partition the entire property, there shall be no question of partial partition. Title Partition Suit No. 157 of 2001 has also been filed so that the lis may not remain pending in between the parties and the partition should be complete and final. In my considered opinion, no error is apparent in the order impugned, whereby the court below has directed for analogous hearing of both the suits. I, thus, do not find any jurisdictional error in the impugned order dated 02.08.2006 passed by the trial court concerned, whereby he had rejected the petition of the plaintiff-petitioner under Order XII Rule 6 of the Code and had allowed the prayer for analogous hearing of both the 10 suits. As a result, both the Civil Revisions are dismissed. SC ( Dr. Ravi Ranjan, J.)