IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.553 of 1996 Against the Judgment and Decree dated 21.09.1996 passed by Sri Azad Chandra Shekhar Prasad Singh, Sub- Judge IInd Jamui in Title Suit No.29 of 1980. Awadh Kishore Singh & Anr .... .... Plaintiffs-Appellants Versus Smt. Renu Singh & Ors .... .... Defendants-Respondents ******** For the Appellant : Mr. Ganapaty Trivedi, Advocate For the Respondent : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Dated : 17thday of August, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiffs have filed this First Appeal against part of the Judgment and Decree dated 21.09.1996 passed by the learned Sub-Judge IInd Jamui in Title Suit No.29 of 1980 whereby the learned Court below dismissed the suit for partition with regard to the house standing on plot No.377 measuring 93 decimal and the properties standing in the name of defendant No.5, Indu Devi. 2. The plaintiffs-appellants filed the aforesaid Title Suit No.29 of 1980 claiming for partition of their 1/3rd share in the suit properties mentioned in detail in Schedule II and III of the plaint. The plaintiffs’ case in short is that Mungeshwar Sahoo, J. - 2 - the common ancestor Babu Sarjug Pd. Singh died in the year 1975 leaving behind his 3 sons, namely, Sri Tripurari Pd. Singh (defendant No.1), Brij Bihari Singh, defendant No.2 and Awadh Kishore Singh, the plaintiff No.1, and one daughter, namely, Uma Shashi. The said Babu Sarjug Pd. Singh had also grand sons and grand daughters who are defendants in the suit. The son of plaintiff No.1, namely Arunesh Kumar Singh is plaintiff No.2. It appears that during the pendency of the suit, the defendant No.1, Tripurari Singh died and his legal representatives have been substituted. The further case is that the parties are members of Hindu Joint Family and the defendant No.1 is Karta and Manager since during the life time of late Sarjug Pd. Singh as he is the eldest son and well educated and wise person. Sarjug Prasad Singh owned and possessed moveable and immovable properties, ancestral as well as acquired from money lending business and joint family fund. The joint family had and has sufficient nucleous to acquire those properties, the details of which has been mentioned in Schedule II and III. The joint family has also Jamindari interest at village Marpa, Bhagalpur and village Amba Sarari, Distt. Munger and thus the family have some income from the Jamindari also. 3. The further case is that when the old ancestral residential house was found not sufficient, a new residential house was constructed on plot No.377 under Khata No.64 with the joint family fund. The plaintiff and late Sarjug Prasad Singh were residing in the new building since February, 1973. The defendant No.2 continue to reside in old residential house in plot No.526 under Khata No.129. The defendant No.1 as karta of the family let out a portion of the newly constructed building to soil conservation Department on monthly rent on Rs.330/- from January, 1978. The properties are joint family properties and the parties are in joint possession, therefore, there is unity of title and unity of possession over the properties. However, recently, - 3 - the plaintiff No.1 learnt that the defendant No.1 has managed to get the name of his wife defendant No.5, Indu Devi, introduced as landlord with regard to the portion wherein tenant was inducted. The plaintiff No.1 also came to know that the defendant No.1 has intentionally got the joint family fund diverted to his own benefit by getting the same deposited in his own name as well as in the name of his wife, son and daughters. The aforesaid Act caused suspicious and, therefore, the plaintiffs demanded partition of the suit properties which was refused. The plaintiff being the most junior member of the family has no knowledge of all the joint family properties and whenever he will come to know about the same he will add the same. Since the demand of partition was refused, the plaintiffs filed the present suit claiming 1/3rd share. 4. The defendant No.1, Tripurari Prasad Singh and his wife, defendant No.5, Indu Devi, filed a joint contesting written statement. Defendant No.2 did not contest the suit. The heirs of daughter of Sarjug Prasad Singh also did not contest. 5. The main defence of the defendant No.1 and 5 is that the parties are not the members of joint Hindu family. The defendant No.1 was never the karta of joint family as alleged by the plaintiffs. According to these defendants, Sarjug Prasad partitioned his 3 sons in the year 1965 with their consent and he himself did not take any share. After partition, he lived with defendant No.1. In the aforesaid partition of the year 1965, the properties detailed in Schedule-I of the written statement fell in the share of plaintiff and the properties detailed in Schedule II of the written statement fell in the share of defendant No.1, Tripurari Prasad Singh and Schedule III properties of written statement fell in the share of defendant No.2. The further case is that the properties detailed in Schedule ‘IV’ of the written statement of - 4 - Marpa and Ambasarari are self acquired properties of defendant No.5, Smt. Indu Devi. She purchased those properties out of her stridhan which she got at the time of marriage and thereafter from time to time from her brothers and also from saving made within house expenses and also from her husband and also with the income of her husband. The defendant No.1 in the said partition got plot No.377 along with other plots in village Mahisauri and plot No.325 and 414 in Village Nardi. After partition, the defendant No.1 exchanged 93 decimal of plot No.377 under Khata No.64 in Mahisauri with Kailash Prasad Singh and his brother, Udai Singh both sons of late Bindeshwary Prasad Singh with the land of plot No.325, 414 under Khata No.86 total measuring 86+11=97 decimal. After exchange, constructed the residential house over plot No.377 out of his own income. The defendant No.1 and 5 with their children are residing in the said house over plot No.377 and the plaintiffs and defendant No.2 have no concern or interest over the said house. The plaintiffs were residing in the house on plot No.532 and when the Dalan in possession of plaintiffs fell down in 1978, he was allowed to reside in the new house of plot No.377. The other allegations made in the plaint were denied. The defendant pleaded that there was no joint family property nor joint family nucleus. Sarjug Prasad Singh never acquired any property. The defendant also pleaded that it is false to say that there was money lending business of Sarjug Prasad Singh. The defendant No.5 was advised to obtain license in the name of Sarjug Prasad Singh and, therefore, the license was obtained in the name of Sarjug Prasad Singh. 6. On the basis of the aforesaid pleadings of the parties, the following issues were framed by the Court below : (i) Whether the plaintiffs have got any cause of action for the suit? (ii) Whether the plaintiffs are required to pay advalorem Court fee in the suit? - 5 - (iii) Whether the lands acquired in the name of defendant No.5 are worth Rs.40,000/-? (iv) Whether the suit is bad for defect of parties? (v) Whether the purchased lands of villages Mahisour Amla Sarari mentioned in Schedule II of the plaint are the personal and self acquired properties of defendant No.5? (vi) Whether there had been any partition among plaintiff No.1 and defendants Nos.1 and 2 in 1965 in the manner as alleged by defendants Nos.1 and 5? (vii) Whether the suit is for partial partition as alleged by defendants Nos.1 & 5? (viii) To what relief or reliefs, if any the plaintiffs are entitled? (ix) Is the suit as framed maintainable? 7. After trial, the learned Court below held that during his life time, Sarjug Prasad Singh was karta of the family and the lands of the parties are still joint. It may be possible that they are cultivating the lands separately for their convenience but the lands are not partitioned by metes and bounds. The plaintiffs are entitled to get 1/3rd share in the property of Sarjug Prasad Singh vide paragraph 25 of the Judgment. The learned Court below also found that there is no registration paper and, therefore, the exchange is illegal and void and on the basis of this exchange, the defendant No.1 and 5 have no title over the land of Kailash Prasad Singh measuring 93 decimal of plot No.377 of village Mahisauri vide in the middle of paragraph 26. The learned Court below also held that Ext.11/D seemed to be forged and fabricated and further held that Sarjug Prasad Singh had 93 decimal of plot No.377. Kailash Prasad Singh has right and title still on 93 decimal of plot No.377 so the plaintiff has no right to partition the property of Kailash Singh in plot No.377, area 93 decimal. The learned Court below on this finding excluded the plot No.377 from partition. The learned Court below also found that the properties standing in the name of Indu Devi, defendant No.5 is not the property of Sarjug Prasad or his son and, therefore, at paragraph 29, the learned Court below excluded the 93 decimal of plot No.377 and the property - 6 - of Indu Devi from partition. So far rest properties in the suit are concerned, it has been found that the properties are joint and there had been no partition, therefore, the suit was decreed with respect to those properties. Against this part of the decree whereby the learned Court below excluded the properties standing in the name of defendant No.5 and the house property over 93 decimals of plot No.377 were excluded from partition, the plaintiffs have filed this present First Appeal. 8. Mr. Ganapathy Trivedi, the learned counsel appearing on behalf of the appellant submitted that the defendant’s case is that there had already been partition in the year 1965 during the life time of Sarjug Prasad Singh has been disbelieved by the trial Court. The learned trial Court also found that the properties of Sarjug Prasad Singh is still joint and, therefore, decreed the plaintiff suit for partition. So far this part of the decree is concerned, there is no cross appeal or cross objection filed by the defendants-respondents and, therefore, now it becomes admitted fact that that part of the decree cannot be set aside by this Court sue moto. The finding of the Court below that there had been partition in the year 1965 as alleged by the defendant No.1 is concerned, it cannot be reversed in this First Appeal which has attained finality. The respondent cannot be allowed to challenge this part of the finding on which a part of the decree is based without filing cross objection in this Appeal. According to the learned counsel, the learned Court below also disbelieved a story of exchange and held that the exchange is illegal and void but wrongly held that Sarjug Prasad Singh had only 93 decimal of land in plot No.377 and also wrongly held that the said land belonged to Kailash Prasad Singh. The learned counsel submitted that this finding of the trial Court is mutually inconsistent because according to the defendant’s case itself, 93 decimal was allotted to Sarjug Prasad Singh and on partition, said 93 decimal fell in the share of defendant - 7 - No.1. The learned Court below in one hand found that the exchange is illegal and void and at the same time has given a finding that the land of 93 decimal belong to Kailash Prasad Singh. The learned counsel submitted that Kailash Prasad Singh is not a party in the suit. 9. The learned counsel for the appellant further submitted that the plaintiffs produced the registered 2 which is 11/D from which it is clear that the name of raiyat is Sarjug Prasad Singh in whose name Jamabandi have been opened regarding 1.86 acres of land of plot No.377 but the learned Court below on the basis of oral evidence only held that this document seems to be forged and fabricated without considering the fact that this Ext.11/D is maintained in the official capacity and presumption of genuineness is attached according to Section 114 (e) of the Indian Evidence Act. No cogent evidence has been adduced by the defendants-respondents to rebut the presumption attached to Ext.11/D, i.e., Ext.11/D was produced by the plaintiff to show that Sarjug Prasad Singh was allotted 1.86 acre in the partition between his brother and which has been shown in Schedule II of the plaint of the present suit for partition. According to the defendants in fact Sarjug Prasad Singh was allotted only 93 decimal of plot No.377. Contrary to this ext.11/D, no documentary evidence has been adduced by the defendants. 10. The learned counsel for the appellant next submitted that the money lending business stands in the name of Sarjug Prasad Singh and it is the case of the plaintiff that there was sufficient joint family nucleous out of which the properties have been acquired. The plaintiff also specifically pleaded that even during life time of Sarjug Prasad Singh, the defendant No.1 was acting as karta, he was intelligent, wise person but the defendant No.1 diverted the joint family fund for his person benefit and deposited the - 8 - amount either in the name of his wife or sons or the daughters. When the case of partition in the year 1965 as pleaded by the defendant has been disbelieved by the trial Court which has attained finality, the defendant No.1 continued to act as karta. All the properties standing in the name of defendant No.5 which has been purchased out of the joint family nucleus are also joint family property. It was for the defendants to show that in fact the properties were acquired without the joint family nucleous. The learned Court below has wrongly held that those properties are the self-acquired property of defendant No.5 out of her stridhan property. The learned counsel also submitted that the house standing on plot No.377 was constructed by the defendant out of joint family nucleous and, therefore, the plaintiff have got 1/3rd share in the said property also. The plaintiffs are still in possession of the said property. The defendant No.2 is also in possession of the said property, i.e, house standing on plot No.377. However, wrongly, the learned trial Court excluded the said property holding that the properties belong to Kailash Prasad Singh without their being any evidence, either documentary or oral and even without claim made by Kailash Prasad Singh who was not even party to the suit. All these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff suit be decreed intoto. 11. On the other hand, the learned senior counsel, Mr. S. S. Dwivedi submitted that there is no illegality in the impugned Judgment and Decree. The learned counsel further submitted that the witnesses have admitted the fact that the house was constructed by the defendant No.1 out of his personal income. The defendants have examined the co-sharer who have deposed to the effect that 93 decimal land was exchanged by Kaialsh Singh. This case of the defendant is also supported by Kailash Singh himself. The tenant was inducted by defendant No.5. The defendant No.1 was a - 9 - renounded Advocate at Jamui and he was also MLA, Minister, Speaker during the period 1967 to 1980. The defendants examined witnesses in support of the fact that Indu Devi out of her stridhan properties, purchased the properties in her own name. Since 93 decimal was exchanged by defendant No.1 with Kailash Prasad Singh which is supported by the evidence of Kailash Prasad Singh and others, the learned Court below has rightly held that the property over which house has been constructed belonged to Kailash Prasad Singh and, therefore, plaintiff have got no share in the said property. The learned counsel further submitted that the learned Court below has wrongly found that there had been no partition in the year 1965. 12. The learned counsel for the respondent further submitted that Ext.11/D has rightly been held to be forged and fabricated document. The defendants also produced ext.‘K’, the Rehan deed of the year 1958 to show that Sarjug Prasad Singh had no income sufficient and, therefore, there was no question of acquiring the property in the name of defendant No.5. The learned counsel next submitted that the plaintiff had filed simple suit for partition without praying for declaration of title regarding the properties standing in the name of defendant No.5. There is no pleading in the plaint regarding the acquisition of the properties by the joint family in the name of defendant No.5. The plaintiff was required to file suit for declaration that the said properties belong to joint family property and also was required to pay advelorum court fee on the said property but without mentioning in detail, the plaintiff filed simple suit for partition. There is no whisper about which properties stands in the name of defendant No.5. On the contrary, the defendants have specifically pleaded regarding self-acquisition of the properties detailed in Schedule 4 of the written statement. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. - 10 - 13. In view of the above facts and circumstances of the case and contentions raised by the parties, the following points arises for consideration in this appeal : (i) Whether the finding of the learned Court below holding title of Kailash Singh over 93 decimal of plot No.377 in Khata No.64 of village Mahisauri is sustainable in the eye of law and whether the plaintiffs are entitled to partition of the said property also. (ii) Whether the properties standing in the name of defendant No.5 are her self-acquired property or are the joint family property and whether the plaintiffs are entitled to 1/3rd share in those properties also and whether the findings of the learned Court below are sustainable in the eye of law. 14. Point No. (i) : Admittedly, the plaintiff suit for partition had been decreed by the learned trial Court excluding plot No.377 of Khata No.64 of village Mahisauri. The plaintiff’s case is that all the suit properties belong to joint Hindu family consisting of the parties. The defendant No.1 was karta and Manager of the family. On the other hand, the defendant’s case is that there had already been partition between the 3 sons during the life time of their father, Sarjug Prasad Singh in the year 1965 and since then the parties are separate and there is no joint Hindu family. So far this case of the defendant is concerned, the same has been disbelieved by the Court below. 15. The learned Court below found that there had been no partition as alleged by the defendants. In the schedule of the plaint, there are many properties measuring about more than 30-35 acres. On the finding that there had been no partition and the parties are joint, the learned trial Court decreed the plaintiff’s suit for partition to the extent of his 1/3rd share. This part of the decree has not been challenged by the defendants-respondent either by filing cross-objection or by filing separate cross appeal. Now, therefore, this finding of the Court below that there had been no partition as alleged by the defendant-respondent in the year 1965 attained its finality. In other words, this finding cannot be challenged in this appeal by the - 11 - respondent without filing cross objection. If this finding is set aside without their being any cross objection, the other part of the decree whereby the plaintiff suit had been decreed will automatically be set aside. Therefore, the respondents cannot be allowed to challenge that part of the decree which is based on finding that the parties are joint and the properties of Sarjug Prasad Singh was not partitioned. Keeping in mind, the aforesaid facts, the question for decision is as to whether the plaintiffs have got their share over plot No.377 measuring 1.86 acres. So far this question is concerned, The plaintiff mentioned in the plaint Schedule No.II showing plot No.377 measuring 1.86 acres to be the property of Sarjug Prasad Singh. In other words, the plaintiff claim 1/3rd shares out of 1.86 acres of plot No.377. On the contrary, the defendant’s case is that Sarjug Prasad Singh was allotted only 93 decimal in plot No.377. The other 93 decimal was allotted to Kailash Singh. The total area of plot No.377 is 3.01 acres. Sarjug Prasad Singh had 4 brothers. Sarjug Prasad got 93 decimal, father of Kailash got 93 decimal and one brother got 22 decimal and another brother got 93 decimal total 3.01 acres. After partition in 1965, 93 decimal which was allotted to Sarjug fell in the share of Tripurari Singh, defendant No.1. Tripurari Singh got 93 decimal of Kailash Prasad Singh in exchange of his properties measuring 97 decimal of two plots of village Nardih which was allotted to him in partition of the year 1965. As stated above, the case of the defendant regarding partition of the year 1965 has been disbelieved by the Court below. When there was no partition of the joint family property of the parties, there is no question for exchange arises. Moreover in the present suit, the learned Court below held that there is no registered document of exchange. Therefore, the exchange is illegal and void. 16. The plaintiff to prove his case and to falsify the case of the defendant produced the Jamabandi, i.e., registered 2 which has been marked - 12 - as Ext.11/D. From perusal of this ext. 11/D, it appears that in case No.66 of 1965-66, Jamabandi was separated and Sarjug Prasad Singh got 1.86 acres in plot No.377. It will not be out of place to mention here that these register ‘2’ is kept by public servant in official acts which are performed regularly. Therefore, in view of Section 114 (e) of the Indian Evidence Act, presumption of correctness is attached to the register ‘2’, i.e., Ext.11/D. So far this Ext. 11/D is concerned, there is no contrary document produced by the defendants which can rebut the statutory presumption attached to the said document. The defendants have examined D.W.4 and D.W.6 in support of their case that Sarjug Prasad Singh was allotted only 93 decimal. 17. The learned senior counsel for the respondent, Mr. Dwivedi, submitted that there is no averment in the plaint that Sarjug Prasad allotted 1.86 acres in plot No.377 and has also not stated about the partition between the sons of Pitambar Singh. The plaintiff also did not produce ordersheet on the basis of which Jamabandi was created. So far the submission of the learned counsel for the respondent is concerned, it may be mentioned here that there is no case made out in the written statement or in the evidence that Ext.11/D produced by the plaintiff is forged and fabricated document. The learned counsel next submitted that the co-sharer and Kaialsh Singh admitted that he gave 93 decimal to defendant No.1 in exchange. So far evidence of the witnesses of defendants are concerned, it may be stated that except this oral statement of exchange, there is nothing on record in support of this fact. It is well settled principle of law that exchange cannot be made by admission. Registered document is necessary. Further as stated above since the finding of the learned Court below that there had been no partition between the sons of Sarjug Singh had attained finality, no question of exchange arises. The learned counsel