Letters Patent Appeal No.806 OF 1998 Against the judgment dated 12.5.1998, passed by the learned Single Judge in F.A.No. 319 of 1979 ------ NAUSHAD ALI & ORS----------------------------------Appellant Versus MD.ISRAIL & ORS------------------------------------Respondents ------ FOR THE APPELLANTS : Dr. Uma Shankar Pd. Sr. Advocate - Mr. Deepak Kr. Sinha, Advocate. ---------- FOR THE RESPONDENTS-: M/s. Farooque Ahmad Khan, Advocate Abdus Salam, advocate ------------- P R E S E N T THE HON'BLE MR.JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON’BLE MR. JUSTICE Dr. RAVI RANJAN ---------- Ranjan, J Aappellants, being aggrieved by the judgment and decree dated 12th of May 1998 passed by the learned Single Judge allowing the First Appeal No. 379 of 1979, has preferred this appeal under clause 10 of the Letters Patent. Shorn of details, short facts of the case is that the plaintiff filed a title suit no. 242 of 1975 for partition of joint properties, claiming 1/3rd share with regard to the properties described in schedule- I and II of the plaint. The plaintiff, defendant no.1 and defendant no.2 were own brothers. It was claimed by the plaintiff that though the brothers were living separately, however, congenial relationship between the brothers continued even after separation. As a result of which they continued to make joint acquisitions. Properties described in - 2 - schedule -I and II were such properties. Since, subsequently he was feeling difficulty in joint cultivation and enjoyment of properties he requested the defendants for partition and on their refusal he brought the title suit no. 242 of 1975 for partition of his 1/3rd share in both schedule- I and II. The defendant no.1 filed written statement and besides refuting the allegations and controverting the statements made in plaint, he added for partition certain premises at Jamshedpur alongwith some moveable properties detailed in schedule III Ka and Kha. Title suit no. 242 of 1975 had been decreed in part on contest against the defendant nos. 1 and 2 directing that the plaintiff and defendant no.1 and defendant no.2 would get 1/3rd share in the properties described in schedule- I of the plaint excepting the plot no. 322 of Khata no. 300, regarding which the plaintiff and defendant no.1 had been found entitled for ½ share each. The plaintiff and defendant no.2, though have been held to had purchased the land described in schedule- II jointly with the defendant no.1, they had not been found entitled for any share thereof and have been compensated by directing the defendant no.1 to refund purchase money contributed by them. Abdul Rahim (respondent no.1 in F.A.No.319 of 1979) had filed cross objection challenging that part of the impugned judgment whereby and where under the learned trial court had not found the properties described in schedule Ka and kha of written statement as joint properties of the parties and had held that the business of Jamshedpur was not joint and the properties detailed in schedule-Ka of - 3 - belonged to the person or persons in whose name it stood. The impugned judgment had also been assailed in the cross-objection on the ground that the trial court erred in holding that Rs. 8600/- should be refunded by the defendant no.1 to the plaintiff and defendant no.2 It is admitted case of the parties that the land mentioned in schedule-II was purchased in the name of all the brothers. However, the trial court had held that the construction there upon and some business which was being run there belonged to the defendant no.1 though the lands were acquired jointly by all the co-sharers by Ext.1/J and 1/D, the registered sale deeds. The trial court had calculated Rs. 12,900/-, which was the consideration money, as the cost of aforesaid investment and had held that the defendant no.1, Abdul Rahim started his business on the joint land for which the co-sharers could be compensated by refunding Rs. 4300/- each being 1/3rd share of the aforesaid investment to plaintiff as well as defendant no.2 on the basis of equity. Learned counsel for the appellant contended that the learned single Judge ought to have disposed of the cross objection also after hearing both the parties. He submits that though filing of cross- objection has been noticed by the learned single Judge but thereafter he has not decided the controversy raised therein. Thus, according to the appellant the impugned judgment is liable to be set aside on that ground alone. This submission of the learned counsel for the appellant is noted to be rejected only for the reason that the learned single judge has clearly stated in paragraph 4 of the impugned judgment that at the time - 4 - of hearing the parties have confined the dispute with respect to the schedule-II properties only which is 12 kathas of land situated in the town of Siwan. For that reason, as it appears from the memorandum of appeal, the aforesaid ground has also not been taken by the appellants. This being the situation, I am constrained to hold that having waived their right before the learned Single Judge, the appellants at this stage, cannot be allowed to raise the issue of the cross objection. Mr. Uma Shankar Prasad, learned senior counsel appearing on behalf of the appellant submits that learned single Judge was wrong in confirming the finding of the trial court with regard to joint purchase of the property by all the three co-sharers, as according to him, the land was purchased by the defendant no.1 and the purchase was Benami in the name of two brothers. In support of his submission learned counsel drew my attention towards certain exhibits and evidence led on behalf of defendant no.1. I do not find force in the aforesaid contention raised on behalf of the appellant for the reason that there is no inkling in the written statement filed by the defendant no.1 with regard to the claim of Benami purchase. In fact the defendant no.1, though have claimed that the structure over the lands of schedule-II as well as machinery standing thereupon solely belonged to him but he has never claimed that the lands of schedule-II belongs solely to him. Learned Single Judge has rightly observed that since there was no pleading of Benami purchase, no issue was framed on that question by the trial court. It is well settled that if a claim is not made by the parties in their pleading, the evidence beyond the pleading of the party is simply to be over looked by the - 5 - courts. Learned single Judge has rightly relied in this regard upon the decisions of Privy Council in case of ATTA MD.v. EMPOROR reported in A.I.R. 1930 P.C. 57, Lala Hem Chand V Lala Pearey Lal & ors, reported in A.I.R. 1942 P.C.64, wherein it has been held that the parties to the suit cannot be allowed to lead evidence on points which were not raised in pleading as, if necessary, they had opportunity to amend the pleading for the purpose of raising necessary issues. In the impugned judgment the learned Single Judge has rightly observed that the aforesaid principle is also supported by the decision rendered in the case of S.N. Ranade V. Union of India & anr., reported in A.I.R. 1964 SC, 24 and the decision of this court reported in A.I.R. 1964 Patna, 127. Moreover the trial court has discussed the evidence in detail and after noticing the admission of defendant no.1 in this regard has held that it is admitted case that 12 kathas of land situated at Siwan described in schedule-II of the plaint have been purchased in the joint name of three brothers and that the properties purchased jointly are in joint possession of the co-sharers. That apart, even if it has been held by the trial court that the structure has been raised only by the defendant no.1 and the business thereupon was also being run by the defendant no.1, that does not wash out the right and title of other co-sharer over the aforesaid land. It is well settled proposition of law that possession of one co- sharer does not oust the remaining co-sharers. Mr. Prasad lastly submits that since the finding of the trial court that the construction had been raised by the defendant no.1 and the business thereupon was also being run by him having not been found incorrect, learned Single Judge ought - 6 - not have disturbed the mode of partition as done by the trial court because equity is in the favour of the appellant. That being the situation now the matter of controversy is limited only to the issue as to whether the trial court was correct in holding that the entire lands of schedule-II, though admittedly joint property, should go to the defendant no.1 and the other co-sharers should be compensated by refunding the price of the property which they have invested as per the recital in the registered sale deed. It is well settled that if a joint property is incapable of being partitioned or is such a small property that its partition will benefit nobody then in that case one of the co-sharers is given the land and others are compensated in terms of money. However, in the present case the total area is about 12 kathas which is not so small an area making it incapable of partition. There is no pleading or evidence as well on behalf of the defendant no.1-appellant that the construction is over the entire area of disputed land and his business is being run upon the entire such construction. In fact the learned single Judge has found that in his corss-examination the plaintiff has stated that the total construction is only over one katha and 12-14 dhurs which could not be controverted by the other side. Thus, in the absence of any difficulty as aforesaid, the learned Single Judge has rightly held that the land in dispute was capable of being partitioned and thus the judgment and decree of the trial court is erroneous to that extent. In such circumstances I do not find any force in the submission made on behalf of the appellant. As a result this appeal is fit - 7 - Prasad, J Patna High Court The 1st Oct. 2008 Rahman/NAFR to be dismissed and is dismissed accordingly. However there will be no order as to costs. (Dr. Ravi Ranjan, J) (Chandramauli Kr. Prasad, J)