RFA 104/2006 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MRS. JUSTICE ANIMA HAZARIKA Amitava Roy, J The subject matter of challenge in the instant appeal is the jud gment and order dated 4.7.2006 passed by the learned Civil Judge (Sr. Division), Dibrugarh in Title Suit No. 101/96 dismissing the suit filed by the present app ellant. 2. We have heard Mr S Dutta, Advocate for the appellant and Mr BC D as, Senior Advocate assisted by Mr PJ Saikia, Advocate for the respondents. 3. Shortly put, the pleaded case of the appellant/ plaintiff in the suit is that he and the defendants along with the proforma defendants are the s urviving sons and daughters of Late Ram Janam Koiri. Their father inherited a pl ot of land measuring 2 Bigha 1 Katha 3 Lecha under Dag No. 199 covered by Perio dic Patta No. 277 of the Extended Chiring Gaon Ward, Dibrugarh Town Mouza togeth er with a residential house thereon. The appellant/ plaintiff averred that his f ather in due course renovated and constructed the said house into a permanent st ructure and also constructed a temple adjacent thereto and resided therein perma nently with other members of the family. This property has been described in Sch edule-A to the plaint. The appellant/ plaintiff further stated that his father d uring his lifetime acquired several other plots of land in Chiring Gaon Ward and Extended Chiring Gaon Ward of Dibrugarh Town Mouza measuring 33 Bigha 1 Katha 7 Lecha described in Schedule-B to the plaint and also constructed a number of se mi-permanent houses in some portions thereof which he let out to different tenan ts on monthly rent. The plot of land in occupation of such tenants has been desc ribed in Schedule-C to the plaint. The appellant/ plaintiff averred that with th e expansion of the family, he with the consent of his father constructed a house of his own over a plot of land measuring 1 Bigha 2 Katha 19 Lecha covered by Da g Nos. 205, 206 and 222 and included in Periodic Patta No. 277 of the Extended C hiring Gaon Ward under Dibrugarh Town Mouza. The appellant/ plaintiff acknowledg ed that this land had been allotted to him by his father and that he had been re siding there with his family thereafter. He also stated that the Proforma Defend ant No.2 had as well constructed a house of his own over a plot of land measurin g 4 Bigha 4 Katha 12 Lecha under Dag No. 61, 25 and 79 and included in Patta No. 277 and 153 of the same Ward. According to the appellant/ plaintiff, on the dem ise of his father on 31.10.95, he left behind three sons -Defendant No.1, Profor ma Defendant No.2 and himself as well as two daughters-Smt. Kanwari Singh and Sm t. Radha Singh, Proforma Defendant Nos. 3 & 4 respectively who had been married off in the early 1950s and had been living with their respective husbands. The a ppellant/ plaintiff claimed that on his death, Late Ram Janam Koiri had left lan d measuring 35 Bigha 4 Katha 9 Lecha in different parts of Dibrugarh Town as des cribed in Schedule-B besides one Assam C.I. Sheet Roof, pucca floor, pucca wall family residential house with temple on a plot of land measuring 2 Bigha 1 Katha 3 Lecha described in Schedule-A to the plaint. He also stated that to his infor mation his father had left behind gold and silver coins as well as jewellery bes ides an amount of Rs. 3,90,84,000/- which he sketchily described in Schedule-D t o the plaint. The debts and securities which his father, according to him, had l eft behind has been described in Schedule-E to the plaint worth in all Rs. 5,87, 416.23. The appellant/ plaintiff pleaded that on the death of Ram Janam Koiri, h e along with Defendant No.1 and Proforma Defendant No.2 had inherited the proper ties described in the Schedules to the plaint in equal share. He alleged that af ter the death of Ram Janam Koiri the Defendant No.1 taking advantage of the fact that he had been residing with him in the original family house appropriated ca sh, gold and silver coins and the jewellery exclusively to himself. He also coll ected the rents from the tenants and refused to part with the shares of his two brothers. As the appellant/ plaintiff’s persistent requests to have the property inherited by the sons duly apportioned in equal share fell in deaf ears of the Respondent No.1/ Defendant No.1, the suit was filed praying for a declaration in ter alia of his right, title and interest over one-third share of the properties described in the Schedules to the plaint and for a preliminary decree for parti tion thereof by meets and bounds. 4. The Respondent No.1/ Defendant No.1 in his written statement whi le contending that the suit was barred by limitation, asserted that the father o f the parties Ram Janam Koiri (since deceased) had during his life time effected a family settlement of his properties amongst the children in order to avoid fu ture dispute, discord and differences including those assimilated in the suit an d assigned/ transferred their respective shares to them. He asserted that in ter ms of the said settlement more or less 10 Bigha of land had fallen in the share of the appellant/ plaintiff who, in turn, sold out the same. He claimed to have retained and improved the property that had come to his share in accordance with the family settlement. The answering Respondent/ Defendant contended that the l and measuring 2 Bigha 1 Katha 3 Lechas described in Schedule-A to the plaint alo ng with the house standing thereon had fallen in his share in the family settlem ent. He also claimed that the land in occupation of the tenants had come to his share and that he was, under the family settlement, authorized to collect the re nt as well. Without prejudice to the above, the Respondent/ Defendant pleaded th at even assuming that the properties described in the Schedules to the plaint we re still joint, the appellant/ plaintiff’s share can in law be to the extent of one-fifth thereof in the maximum having regard to the number of heirs and legal representatives left behind by their predecessor-in-interest, Ram Janam Koiri. 5. On the basis of the pleadings, the following issues were framed :- 1. Whether the suit is barred by limitation ? 2. Whether the suit is maintainable in law and facts ? 3. Whether the predecessor-in-interest of the parties to the suit effected a fa mily settlement during his lifetime and the plaintiff sold out his share and lan d ? 4. Whether plaintiff has the 1/3rd share in the ancestral property as claimed or 1/5th share as contended by the defendant No.1? 5. Whether plaintiff is entitled to get a decree as prayed for ? 6. To what other relief or reliefs, the parties are entitled ? 6. At the trial, the appellant/ plaintiff examined four witnesses i ncluding himself and also proved documents in support of the oral testimony. The Respondent No.1/ Defendant No.1 examined himself and two other witnesses. The l earned Trial Court on a consideration of the pleadings of the parties and the ev idence on record, by the impugned judgment and decree, dismissed the suit, parti cularly on the ground that there had been a family settlement during the lifetim e of Ram Janam Koiri on the basis of which the suit property in terms thereof ha d been partitioned. 7. Mr. Dutta argued that the impugnment in the present appeal is li mited to the finding of the learned Trial Court on family settlement vis-à-vis t he land described in Schedule-B to the plaint only. According to him, having reg ard to the pleaded stand of the Respondent No.1/ Defendant No.1, it was his excl usive burden to prove the factum of family settlement and as he utterly failed t o do so, the determination made by the learned Trial Court recognizing the exist ence thereof is patently against the weight of the evidence on record and is, th us, perverse. As against this, Mr Das urged that having regard to the measure of preponderance of probability to be applied in assessing the evidence on recor d, the family settlement having been duly proved, no interference with the impug ned judgment and order is warranted. The learned counsel for the parties have , in their bid to reinforce their rival contentions, taken us through the pleadi ngs as well as the evidence on record. 8. We have extended our anxious consideration to the limited area o f controversy projected before us. The dissension centres around the factum of f amily settlement, more particularly, involving the land described in Schedule-B to the plaint. The appellant/ plaintiff in his deposition on oath stated that th e area of land described in Schedule-A and B to the plaint together is around 35 Bigha 2 katha 7 Lecha. He proved Exhibit-1,2,3 and 4, zamabandi of plots covere d by Patta Nos. 38, 278, 85 and 277 respectively. While reiterating that the anc estral house stood on the land covered by Dag No. 199 and included in Patta No. 277 measuring 2 Bigha 1 Katha 3 Lecha, he stated that to avoid his vast stretche s of land from being adjudged as ceiling surplus, his father settled different p lots thereof to them (sons). He admitted about a ceiling proceeding involving th e land in the suit and that in order to prevent the same from being acquired as ceiling surplus he showed an area of 79 Bigha to be apportioned amongst him and his three sons. He, however, added that in reality there was no partition. He te stified that the sisters had no claim over the suit property as they had been ma rried off during the lifetime of Ram Janam Koiri. 9. In cross-examination, the appellant/ plaintiff stated that he ha d been living separately from the father since 1974. He deposed that the elder b rother Keshab Koiri had been given about 25/ 26 Bigha of land. He also admitted to have been allotted some land in his possession along with Respondent No.2/ De fendant No.2 and the Respondent No.1/ Defendant No.1. He admitted that his fathe r’s land had not been declared to be ceiling surplus. He admitted that a plot of land measuring 27 Bigha out of 40 Bigha for the brick kiln, included in 79 Bigh a involved in the ceiling proceeding is in his possession and that he had sold a bout 7 Bigha therefrom. He further admitted that in addition to this 26 Bigha of land, he has in his possession 13 Bigha of land. He admitted as well that durin g the lifetime of Ram Janam Koiri, he (appellant/ plaintiff) had instituted a pr oceeding for apportionment of the revenue payable for the land in the Court of t he District Collector. He, however, denied the suggestion that the land revenue was partitioned in the aforesaid proceeding. When confronted with the zamabandi (Exhibit-1 to 4), he admitted that the same recorded the names of many pattadars . 10. P.W.2, Shambu Prasad Koiri, nephew of the appellant/ plaintiff w hile stating that Ram Janam Koiri had distributed 20/21 Bigha of land to each of his three sons and that the appellant/ plaintiff has been residing on his share of land, deposed that the original owner kept to himself land measuring 35 Bigh a. He supported the appellant/ plaintiff’s claim of partition of the suit proper ty. In cross-examination, this witness, however, conceded that Ram Janam Koi ri had allotted the respective shares of land to the appellant/plaintiff and the defendants by written instruments. 11. P.W.3, Jagat Ch. Baruah deposed that Ram Janam Koiri was possess ed of land measuring about 120 Bigha, the identity whereof was known to him. The witness stated that Ram Janam Koiri in the year 1993 informed him that he had d istributed the lands to his sons but had kept to himself a plot measuring 35/ 36 Bigha. 12. P.W.4, Surendra Gogoi stated that out of the different plots of land owned by Ram Janam Koiri he kept for himself 35 Bigha, but had given away t he other plots to his sons. 13. D.W.1, Jamuna Prasad Koiri testified that Ram Janam Koiri during his lifetime had distributed his property amongst his sons and that each one of them received 22 Bigha of land. While stating that the appellant/ plaintiff was living separately from the joint family since 1968 and that Ram Janam Koiri had gifted the ancestral land and houses to him, he referred to Partition Case Nos. 45/82/83 and 42/81/82 which had ended in a compromise. In cross-examination, ho wever, this witness conceded that he had not filed in Court any document evidenc ing sale of lands by the appellant/ plaintiff and the Proforma Defendant No.2 fr om their respective shares. He also admitted that the land in his possession as well as that in occupation of the tenants still stood in the name of his father Ram Janam Koiri. 14. D.W.2, Mahendra Prasad Koiri deposed that the appellant/ plainti ff has been living separately for about three decades and enjoying his own share of property. He deposed that the properties of Ram Janam Koiri had been amicabl y partitioned and that the appellant/ plaintiff had also sold out a portion of h is plot. In cross-examination, this witness stated that Ram Janam Koiri during h is lifetime had secured mutation of the respective plots in the names of his son s. He, however, admitted that the land described in Schedule-B to the plaint sti ll stood in the name of Ram Janam Koiri. 15. D.W.3, Sri Amir Singh, a tenant of Ram Janam Koiri stated about partition of his entire property in three equal parts amongst the sons, namely, the appellant/ plaintiff, Respondent No.1/ Defendnat No.1 and Proforma Responden t No.2/ Proforma Defendant No.2 and that they had been enjoying their respective shares since then. 16. Evidently, the family settlement claimed by the Respondent No.1/ Defendant No.1 had not been reduced into writing. There is, therefore, no docum entary proof of the said event. The zamabandis (Exhibit-1 to 4) though not very clearly substantiate this plea of the Respondent No.1/ Defendant No.1. Exhibit-1 discloses that some lands covered by Dag No. 51 had been mutated in favour of t he appellant/ plaintiff Ganga Prasad Koiri by inheritance along with Ram Janam K oiri. On an analysis of the evidence of the appellant/ plaintiff in particular, it appears that he has been in possession of different plots of land to the excl usion of the other heirs of Ram Janam Koiri. Similar is the status with regard t o the Respondent No.1/ Defendant No.1 and the Proforma Respondent No.2/ Defendan t No.2. That the allocations of land belonging to Ram Janam Koiri had been made with a view to avoid the same being identified as ceiling surplus has been reite rated more than once by the appellant/ plaintiff in his evidence. Not only he ha s stated that in view of such distribution the land belonging to his father was relieved of from being taken over in the ceiling proceeding, he admitted to have filed a case for partition of the revenue payable indicating exclusiveness of t he possession of the respective plots by the heirs of the original owner Ram Jan am Koiri. 17. The evidence of D.W.2 that the land described in Schedule-B to t he plaint still stands in the name of Ram Janam Koiri in absence of any corrobor ative documentary evidence lacks persuasion. Applying the test of preponderance of probability and scrutinizing the oral evidence in juxtaposition, we are const rained to hold hat the approach of the learned Trial Court and the decision reco rded in favour of the family settlement cannot be denounced as absurd or implaus ible. The view taken by the learned Trial Court is a possible one when judged by the state of the evidence on record and, thus, the plea of perversity does not commend for acceptance. We find no reason for interference with the impugned jud gment and order. 18. The appeal lacks in merit and is dismissed. No costs. 19. Office would prepare the decree accordingly and remit the record s to the learned Court below without undue delay.