FIRST APPEAL No. 90 OF 1979 Against the judgment dated 17.11.1978 and the decree following thereupon signed on 25.11.1978 by Sri S.N.P. Sunderka, Sub Judge-II, Gaya in Title (Partition) Suit No. 17 of 1976. Smt. Shyamphul Devi ………… Plaintiff/Appellant Versus Ram Bhajan Mahto & another ……….. Defendants/Respondents ******** For the appellants : Mr. Shashi Shekhar Dwivedi, Senior Advocate For the respondent : None Dated : 29th day of September, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiff has filed this first appeal against the judgment dated 17.11.1978 and the decree signed on 25.11.1978 by Sri S.N.P. Sunderka, Sub Judge-II, Gaya in Title (Partition) Suit No. 17 of 1976 dismissing the plaintiff’s suit for partition. 2. The plaintiff filed the aforesaid suit claiming 1/4th share in the suit property. Her case in short is that the common ancestor of the party Chamari Mahto got the suit properties in the partition with his brothers 50 years ago. The said properties have been mentioned in Schedule-A of the plaint. Chamari Mahto died leaving behalf two sons namely Shivdayal Mahto and Luxman Mahto. Luxman Mahto died issueless 35 years ago whereas Shivdayal Mahto died 30 years ago. Mungeshwar Sahoo, J. -2- Shivdayal Mahto had two sons namely Bodhi Mahto and Rohan Mahto. Bodhi Mahto died 15 years ago leaving behind his two daughters Shyamphul Devi, the plaintiff and Kesar Devi, the defendant No.2. The defendant No.1 Ram Bhajan Mahto is the son of Rohan Mahto. It is stated that Rohan Mahto died one month after the death of Bodhi Mahto. 3. The further case of the plaintiff is that the plaintiff and the defendants jointly succeeded to the properties as detailed in Schedule-A of the plaint. The defendant No.1 started mismanaging the properties and, therefore, the plaintiff raised objection and demanded partition which was ultimately refused by the defendant No.1 so this suit was filed for partition claiming 1/4th share. It is stated that the defendant No.1 has got half share and defendant No.2 has got 1/4th share. 4. On being noticed the defendant No.1 appeared and filed a contesting written statement contending inter alia that the genealogy is not correct. Luxman Mahto died leaving behind his son Bechan Mahto who is still alive. The lands of Khata No.20 were never recorded in the name of Chamari Mahto and his brothers. It was recorded in the name of Karan Koeri and Bodhi Mahto. Rohan Mahto had acquired the lands of Khata No. 20 from Mosst. Pachiya Koeari, widow of Karan Mahto through a register sale deed dated 8.7.1948. It is also stated that the Schedule-A lands were not allotted to the Chamari Mahto in partition between his brothers rather Schedule-B of written statement were allotted to Chamari Mahto. The further case of the defendant is that Sheodeyal Mahto died about 45 years ago. Bodhi Mahto died in the year 1948 and Rohan Mahto died in 1970. Rohan Mahto and Bodhi Mahto were members of joint family governed by Mitakshara School of Hindu Law and, therefore, on the death of Bodhi Mahto in the year 1948 the share of Bodhi Mahto devolved upon the defendant No.1 by -3- survivorship. Therefore, neither the plaintiff nor the defendant No.2 inherits the property of Bodhi Mahto. It is therefore, stated that the plaintiff has got no unity of title and possession. The defendant also claimed title by adverse possession over Schedule-B of written statement property. The plaintiff filed 144 Cr.P.C. proceeding but subsequently, she left Pairvi and as such it was decided in favour of the defendant. Additional written statement was also filed. 5. The defendant No.2 filed written statement in the same line as that of defendant No.1. However, she did not contest. 6. In view of the above pleadings of the parties, the learned court below framed as many as six issues as follows : I. Is the suit as framed maintainable ? II. Has the plaintiff got any cause of action or right to sue ? III. Whether Bodhi Mahto died in the year 1961 as alleged by the plaintiff or in the year 1948 as alleged by the defendant ? IV. Whether the plaintiff has got 1/4th share in the partition claimed properties ? V. Whether the plaintiff is entitled for a decree for partition as claimed ? VI. To what relief or reliefs, if any, is the plaintiff entitled ? 7. After trial learned court below considering the evidences and materials available on record came to the conclusion that Bodhi Mahto died in the year 1948 and not in the year 1961 and in this view of the matter the plaintiff has got no share in the property. 8. It may be mentioned here that the lower court record has been received but from perusal of the lower court record it transpires -4- that all the exhibited documents of the defendant-respondent No.1 has been received back by the defendant No.1. In spite of direction neither the documents were filed before this Court nor anybody appeared when the case is called out for hearing. It was directed to the respondents that if the documents are not filed before this Court the documents will be ignored. From perusal of order dated 9.1.2009 it appears that the learned counsel appearing on behalf of the respondents submitted that the paper book may be prepared without the exhibits of the respondents because the said exhibits are not available with the respondents. However, since there was delay in preparing the paper book and considering the fact that the appeal is of the year 1979, it was directed that the appeal be listed for hearing without the paper book and thereafter the case was being heard. From perusal of the record it appears that because of want of exhibits of the respondents the delay was caused in hearing of the appeal but when no documents were filed by the respondents the appeal was heard. 9. The learned Senior counsel Mr. Shashi Shekhar Dwivedi appearing on behalf of the appellant submitted that the defendant No.1 did not re-file the documents exhibited by him in the court below so now there is only one document available on record which is the document of plaintiff-appellant i.e. Ext. 1. The documents of the defendants-respondents cannot be considered and it will be presumed that had the defendants-respondents filed the documents before the Court, the documents could have been shown and proved by the appellant that those are neither reliable nor tenable. In such circumstances that part of the judgment by which the documents of the defendants have been relied upon cannot be considered by this Court. 10. The learned counsel further submitted that learned court below has wrongly not relied upon Ext. 1, the death certificate of Bodhi -5- Mahto and the reasons assigned by the learned court below for not relying on Ext. 1 are not tenable. The learned counsel submitted that the first reason for not relying on Ext. 1 is that the said document was not filed with the plaint and that had it been in possession of the plaintiff then in the plaint the date of death of Bodhi Mahto should have been mentioned. So far this reason is concerned according to the learned counsel is not tenable because the husband of the plaintiff PW 8 has specifically stated that the documents was handed over to the plaintiff’s advocate who did not file it for the reasons best known to him but because of that the plaintiff should not suffer. According to the learned counsel so far second reason is concerned that the document was not filed in 144 Cr.P.C. is concerned on that ground the document cannot be discarded. The learned counsel further submitted that the learned court below has also not relied upon Ext. 1 on the ground that the writing on the form appears to be recent and, therefore, it is forged document which is also not tenable because it was not the case of the defendants-respondents that the writing is recent and, therefore, it is forged. 11. The learned counsel further submitted that the learned court below has not believed the case of the plaintiff regarding the year of death of Bodhi Mahto and stated that earlier it was mentioned in the plaint that Bodhi Mahto died 25 years ago but subsequently, amendment was made by substituting the figure 25 by figure 15. According to the learned counsel when the amendment was allowed by the court below considering it to be bona fide mistake the learned court below could not have looked into the un-amended portion of the plaint and on that ground could not have disbelieved the plaintiff’s case of year of death of Bodhi Mahto. The learned counsel further submitted that emphasis should not be given on the form pleading but the court is -6- required to see the substance of the pleading but in the present case the court has given much emphasis on the form of pleading. The learned counsel further submitted that the learned court below has not properly considered the oral evidences of the plaintiff. On these grounds the learned counsel submitted that the impugned judgment and decree are liable to be set aside. 12. As stated above no body appears on behalf of the respondents. 13. In view of the facts and circumstances of the case, it appears that the main controversy between the parties is the year of death of Bodhi Mahto. If he died prior to 1956 then the plaintiff being the daughter of Bodhi Mahto will not get any share in the property of Bodhi Mahto. If he died after 1956 then certainly she will have a share in the property. According to the plaintiff her father Bodhi Mahto died in the year 1961 whereas according the defendants Bodhi Mohdo died in 1948. It appears that the learned court below also considered this question on issue No.3. In view of the above facts, the only point arises for consideration in this first appeal is, whether Bodhi Mahto died in the year 1948 or in the year 1961. 14. The parties have adduced oral as well as documentary evidences in support of their cases. The plaintiff has examined ten witnesses in support of her case. PW 1 to PW 5 have not stated anything about the death of Bodhi Mahto. PW 1 to PW 3 are co-villager of the deceased Bodhi Mahto who were competent to say the year of death but as stated above there is nothing regarding the death of Bodhi Mahto in their evidence. PW 6 is of another village. He has stated that Bodhi Mahto died 16-17 years ago. In the cross-examination at paragraph 2 he admitted that he is Phuphera brother of Chedi Lal who is husband of the plaintiff. Therefore, this witness on the question of year -7- of death of Bodhi Mahto is not reliable. PW 9 is also of the village of PW 6. He has also stated that Bodhi Mahto died 16-17 years ago. This witness is a railway driver as has been admitted by him in his cross examination at paragraph 2. It may be mentioned here that PW 8 Chedi Lal is employed in railway. Therefore, in support of him PW 6 and PW 7 although of different village have been examined to support the plaintiff’s case. The peculiar circumstance is that the co-villager who are competent to say about the year of death of Bodhi Mahto i.e PW 1, 2 and 3 have not stated a word regarding the year of death of Bodhi Mahto whereas these witnesses PW 6 and PW 7 who are either relation or a friend of plaintiff’s husband are deposing about the year of death. 15. PW 8 is the husband of plaintiff. He has stated that his father- in-law Bodhi Mahto died 16-17 years ago. PW 9 is the neighbor of Chedi Lal, he has stated that 20-22 years ago Bodhi Mahto died in the house of Chedi Lal. In paragraph 2 he has stated that he along with Deen Dayal had gone to inform the police station and one receipt was granted and on the receipt Deen Dayal has put his L.T.I. He has proved Ext. 1 the said receipt. PW 10 is also on the point of Ext. 1. These are the oral evidences adduced on the behalf of the plaintiff. 16. Ext. 1 is the death report of Bodhi Mahto wherein the date of death of Bodhi Mahto has been mentioned as 1.5.1961. According to PW 9 he along with Deen Dayal had gone to inform and Deen Dayal put L.T.I. on it. From perusal of Ext. 1 it appears that the name of the informant is Ram Dayal Prasad. The further circumstance is according to PW 8 prior to institution of the suit this Ext.1 was handed-over to his counsel but this document was never produced with the plaint. If the evidence of PW 8 is relied upon on this point then there should have specific mention about the date of death of Bodhi Mahto in the plaint as 1.5.1961. Peculiarly there is no pleading based on this exhibit rather -8- earlier it was mentioned that 25 years ago Bodhi Mahto died. The suit was filed in the year 1976. In view of the statement made in the plaint which was amended subsequently, the defendants’ case was supported. After examination of 5 witnesses, the plaintiff got the plaint amended and substituted the figure 25 to 15. The learned counsel for the appellant submitted that it was only a bona fide typing mistake and, therefore, court after amendment cannot consider the earlier un- amended plaint. So far this submission is concerned the un-amended plaint is not being considered. The conduct of the plaintiff is considered that although the main question/controversy between the parties was the year of death of Bodhi mahto and according to plaintiff Ext.1 was in possession with the plaintiff which was handed-over to the Advocate but then the Ext. 1 was neither filed with the plaint nor date of death of Bodhi Mahto was mentioned in the plaint. The other peculiarity is after filing of the written statement also the plaint was not amended, after examination of 5 witnesses plaint was amended and during this amendment also neither in the amendment application nor in the amended portion of the plaint the date of death of Bodhi Mahto as mentioned in Ext.1 was given. This conduct of the plaintiff creates doubt about the genuineness of Ext. 1. The other circumstances are that the amendment was made on 11.9.1978 and PW 9 was examined on 20.9.1978 who proved Ext. 1. If Ext. 1 was in possession and within the knowledge of the plaintiff on the date of filing the plaint or on the date of filing the amendment application then what prevented the plaintiff to mention about this Ext.1 either in original plaint or in amended plaint. 17. The further circumstance which is against the plaintiff is that the plaintiff herself has not been examined. As stated above no co- villager has stated about the main controversy between the parties i.e. year of death of Bodhi Mahto. PW 9 says Deen Dayal put L.T.I. on Ext.1 -9- whereas Ext. 1 shows one Ram Dayal Prasad informed about the death and put L.T.I. No doubt in this case as stated above the defendant- respondent has taken back the exhibits so the exhibits of the respondent is not available on record but from perusal of the impugned judgment, it appears that the defendants had applied for certified copy of death register of Bodhi Mahto and it was replied by the Municipalities, Gaya that there is no such entry in the register regarding the death of Bodhi Mahto on 1.5.1961. The learned counsel for the appellant submitted that this part of the observation made by the learned court below cannot be relied upon in absence of the relevant document Ext. E. I do not agree with the submission because this is an observation of a judicial court. This is not the case of the appellant that the observation or finding of the court below regarding the letter of Gaya, Municipality is wrong. As stated above although Ext. E is not available before this Court but after perusal of that Ext. E the court below has observed that there was no such entry in the death register on the relevant date. The learned court below also observed that the death register was in fact produced before the court. In such circumstances only because the relevant documents are not available on record the finding and/or the observation made by the court below cannot be wiped out. 18. It will not be out of place to mention here that the sister of the plaintiff i.e. second daughter of Bodhi Mahto Kesar Devi admitted the fact that her father died thirty years ago and as such she has no interest in the suit property. To this effect she had filed an application in proceeding under Section 144 Cr.P.C. The learned counsel for the appellant submitted that this is inadmissible against the plaintiff. It may be mentioned here that PW 8 is the husband of the plaintiff. In paragraph 5 of his cross examination he has clearly admitted this fact -10- that Kesar Devi the sister of the plaintiff admitted in 144 Cr.P.C. to this effect. Further the admission of Kesar Devi that her father died 30 years ago is against her interest because of this admission her interest in the property is lost. Therefore, this is another circumstance against the plaintiff. 19. So far the evidences of defendants are concerned DW 1 is sister’s husband of Bodhi Mahto. In other words Bodhi Mahto was brother-in-law of DW 1. He has supported the case of the defendant that Bodhi Mahto died 30 years ago in his house. This witness was treating him as he was attacked with T.B. He has also stated that Rohan was assaulting him and was not treating him and because of that he had taken him to his house. DW 7, DW 9 are the co-villager who have all supported the case of the defendants that Bodhi Mahto died 30 years ago. DW 12 (the defendant No.1) himself has also fully supported his case. The DW 16 is also a co-villager has also supported the case of the defendant that Bodhi Mahto died in the house of his sister. The other oral evidences of the witnesses are not on this point. Now therefore, the defendants have adduced the evidences of the co-villagers, the relation who all have stated that Bodhi Mahto died 30 years ago. From the admission of the PW 8 in the cross examination that Kesar Devi also admitted this fact that Bodhi Mahto died 30 years ago. In view of the above discussion it appears that the oral evidences of the defendants are reliable evidences. 20. To succeed the plaintiff should have adduced more cogent and reliable evidence. As stated above the oral evidences are not reliable and moreover the plaintiff cannot be allowed to take advantage of the weakness of the defendant. The oral evidence and documentary evidence i.e. Ext. 1 are doubtful because of the reasons stated above. I therefore, find that the plaintiff has failed to prove that Bodhi Mahto -11- died in the year 1961 or after 1956. On the other hand the defendants have been able to prove that 30 years ago Bodhi Mahto died i.e. prior to 1956. In such view of the matter the plaintiff is not entitled to a decree for partition as she has no unity of title and possession over the suit property. The finding of the court below on these points are therefore, confirmed. 21. In the result I find no merit in this appeal and, accordingly, this first appeal is dismissed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 29th September, 2010 S.S./N.A.F.R.