FIRST APPEAL No. 35 OF 2005 Against the judgment and decree dated 03.01.2005 passed by Sri Akshaibar Ram, Sub Judge 4th Sitamarhi in Partition Suit No. 83 of 1982. SMT. KRISHNA KUMARI ………. Defendant/Appellant Versus BINOD MISHRA & ORS. ……… Plaintiffs/Respondents ******** For the appellant : Mr. Sushanta Kumar Das, Advocate Ms. Ratna Das, Advocate For the respondents : Mr. Jogendra Mishra, Sr. Advocate For the respondent Nos. 3 to 5 : Mr. Ramesh Kumar Chaudhari, Advocate For the respondent No.8 : Mr. Abinash Kumar, Advocate Dated : The 7th day of April, 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 defendant has filed this first appeal against the judgment and decree dated 03.01.2005 passed by Sri Akshaiber Ram, the learned Sub Judge 4th Sitamarhi in Partition Suit No. 83 of 1982 decreeing the plaintiffs-respondents’ suit for partition. 2. The plaintiff-respondent Nos. 1 and 2 filed the aforesaid Partition Suit No. 83 of 1982 claiming partition of the suit property as mentioned in detail at the foot of the plaint to the extent of their 109/225 share. It appears that during the pendency of the suit the defendant No.1 and also the defendant no.2 died. Therefore, the share Mungeshwar Sahoo, J. -2- of the plaintiffs and the defendant varied and the learned court below decreed the suit holding that the share of both the plaintiffs to be 198/400. 3. The plaintiffs filed the aforesaid partition suit alleging that Mahanth Raghunath Das had two wives namely, first wife Saraswati Devi and second wife Krishna Kumari Devi. He had two sons from first wife namely, Binod Mishra and Bijay Mishra who are the plaintiffs and three daughters who have been substituted as defendants after death of first wife Saraswati Devi, who was original defendant No.2. The second wife was defendant No.3 who is the appellant in this appeal. Mahanth Raghunath Das was the original defendant No.1 who had a son from defendant No.3 namely Kunkun Mishra, defendant No.4. The daughters have been substituted after death of defendant No.1. 4. The further case of the plaintiffs is that the joint family possessed immovable properties and defendant No.1 was in-charge of the whole property but he is not behaving properly with plaintiffs and is residing separately with the defendant Nos. 3 and 4 for long period. The plaintiffs’ mother has got personal properties which are in her exclusive possession. The defendant No.1 since deceased had also gifted some properties to the plaintiffs and defendant No.4 who are in possession of those properties exclusively. Mahanth Raghunath Das, defendant No.1 taking advantage of his position as manager started alienating the property and, therefore, the plaintiffs requested the defendant No1 to partition the joint family property but he refused and, therefore, the suit for partition was filed. 5. The defendant No.1 after filing the written statement died. In the written statement besides taking various ornamental pleas it was contended that the suit properties are the properties of deities installed in Janaksthan Temple. He is not the owner of the property. -3- The defendant No.1 is the Mahanth. Only some documents have been brought into existence showing settlement made by defendant No.1 only to safeguard the properties of the deities from the Government. These documents have been held by the High Court to be Farzi and without consideration and the said documents have already been annulled in proceeding under Section 4(h) of Bihar Land Reforms Act. The sister’s husband of Saraswati Devi namely Gopal Dixit was clever and shrewd man who got some showy settlement in the name of Saraswati Devi, the first wife and on the basis of the said settlement got falsely and fraudulently entered her name in Government Sirista. The first wife on the basis of the said settlement had not acquired any title. The defendant No.1 had sold some properties to meet the legal necessity of the deities and for payment of electric bills and arrears of rent and for charitable purposes. The allegation of gift to the plaintiffs and defendant No.4 are denied. Gopal Dixit had done fraudulent acts and got created several forged fabricated documents and, therefore, the defendant No.1 removed him from service and appointed Shri Naurang Bihari Sinha. The plaintiffs or defendants have no right, title and interest in the suit property. 6. The defendant No.3-appellant filed separate contesting written statement. Besides taking various legal pleas alleged that there is rule of primogeniture in the family, therefore, the properties devolved upon the eldest son i.e. Kunnum Mishra. The main defence is that the suit is bad for partial partition because the plaintiffs have included only the properties which are exclusively belonged to this defendant No.3, the properties which are in the name of defendant No.2 have not been included. All the suit properties were subject matter of Title Suit No.94 of 1964 and also Title Suit No.29 of 1980. The properties mentioned in Schedule 1 of the written statement are -4- the properties of the defendant No.1 which have not been included in the plaint. The plaintiffs’ mother has no personal properties but the plaintiffs have willfully omitted to include the land in partition suit. The defendant No.4 being the eldest son is entitled to inherit the entire property of defendant No.1. All other allegations were denied. According to the defendant-appellant the properties mentioned in the plaint are exclusive properties of the defendant No.3 for more than 45 years. 7. The defendant No.4 Kunkun Mishra appeared and he also filed a contesting written statement. According to his written statement the suit properties are not joint family property. The defendant No.1 and the plaintiffs have no concern with the property possessed by this defendant. The defendant No.4 rendered service to Mahanth Raghunath Das as Chela and after his death he succeeded his entire estate in accordance with the custom of Math. The suit properties were settled with the defendant No.3 in the year 1943 and 1945 and this being the admitted position, the plaintiffs are not entitled to any share because after coming into force of Hindu Succession Act the defendant No.3 became the absolute owner of the properties in view of Section 14 of the Hindu Succession Act. The properties claimed by the plaintiffs to be the exclusive property of their mother belongs to late Mahanth Raghunath Das which has been detailed in Schedule 1 of the written statement and on the death of Mahanth Raghunath Das the said property devolved on this defendant. The defendant No.1 never gifted any property to anyone. All other allegations were denied. 8. On the basis of the above pleadings of the parties the learned court below framed the following issues :- “(1) Is the suit as framed maintainable ? -5- (2) Have the plaintiffs got any cause of action for the suit ? (3) Is the suit barred by Law of Limitation, waiver and estoppel ? (4) Is the suit also barred by the provisions of Section 4 (B) of the Consolidation Act. (5) Is the suit bad in absence of necessary party ? (6) Have the suit property been correctly valued, and court fee paid sufficiently ? (7) Is there unity of title and possession between the plaintiff and the defendant in respect of the suit property ? (8) Are the plaintiff entitled to a decree of partition as prayed for ? (9) To what other relief or reliefs if any the plaintiffs entitled for ?” 9. It may be mentioned here that an interlocutory application being I.A. No. 3263 of 2009 has been filed by the appellant praying therein to include the properties which have been left in the plaint by the plaintiffs which properties stands in the name of their mother Saraswati Devi. It was ordered that this interlocutory application shall be heard at the time of final hearing of this appeal. Therefore, I heard the parties on this interlocutory application also. It may be mentioned here that this is the defence taken by the appellant in the written statement also and this question has also been decided by the learned trial court in the impugned judgment. According to the appellant the suit is bad for partial partition because the plaintiffs have not included the properties which have been settled by defendant No.1 in the name of his first wife Saraswati Devi. In this interlocutory application it is prayed that those properties may also be included and the entire properties should be partitioned between the parties. -6- 10. The learned counsel Mr. Das appearing on behalf of the appellant submitted that it is admitted that late Mahanth Raghunath Das, the original defendant No.1 was the ex-intermediary. He settled the suit properties in the name of the appellant in the year 1943-1945 by Ext. B, B/1 and B/2 and since after settlement the defendant No.2 appellant came in possession of the properties and continued in possession thereof. Earlier with regard to these properties Title Suit No. 94 of 1964 was filed which was decreed ex parte against the appellant and, therefore, the appellant filed Title Suit No. 29 of 1980 which was compromised between the defendant Nos.1 and this appellant wherein the defendant No.1 admitted that he had settled the suit properties in favour of the appellant and, therefore, the present suit is barred by res judicata but the learned court below decreed the plaintiff’s suit without considering this fact. The learned counsel further submitted that the suit properties are recorded in the name of the appellant and she is paying rent to the State of Bihar. Returns have been filed by the ex-intermediary in the name of appellant and she is in possession of the same but the learned court below decreed the plaintiff’s suit. The learned counsel further submitted that the defendant No.1 has also settled some lands in the name of his wife Saraswati Devi but the plaintiffs intentionally did not include the said properties in the suit for partition. The defendant-appellant has mentioned in detail the said properties in Schedule 1 of the written statement for inclusion of the same and partitioning the suit property also but the learned court below wrongly held that those properties are the properties of Sharashwati Devi and, therefore, cannot be included in the suit. 11. The learned counsel further submitted that if the property mentioned in the written statement is included in this suit and partition -7- is effected the appellant has got no grievance. If the property of Saraswati Devi is not partitioned as has been held by the trial court, the properties of the appellant are also be excluded from partition and the remaining properties only be partitioned between the parties. The learned counsel submitted that defendant No.1 settled the land for maintenance in favour of his first wife and in favour of his second wife the appellant also. The suit has been filed for partition of the land which was settled in favour of the defendant No.3 appellant only. The learned counsel further submitted that the Zamabandi has also been opened in the name of appellant and the defendant No.3 appellant is in possession of the suit property, therefore, the plaintiffs have no right, title or interest in the property but the learned court below wrongly decreed the suit. The learned counsel further submitted that the learned court below has not properly appreciated the oral as well as documentary evidences. On these grounds, the learned counsel submitted that the impugned judgment and decree are unsustainable in the eye of law and, therefore, liable to be set aside. 12. The learned counsel Mr. Mishra appearing on behalf of the plaintiffs-respondents submitted that the settlement made by defendant No.1 in favour of the appellant through Ext.B, B/1 and B/2 has already been held to be forged, fabricated and fraudulent document in a proceeding under Section 4(h) of the Bihar Land Reforms Act and the said Patta Ext. B series have been annulled. In spite of the fact that the settlement Patta have been annulled as aforesaid by the competent authorities in Section 4 (h) proceeding the appellant was trying to dispose of the property therefore, the defendant No.1 late Mahanth Raghunath Das himself filed Title Suit No. 94 of 1964 praying for restraining the appellant from transferring the suit property on the ground that the settlements have been -8- annulled. The said suit was decreed ex parte in the year 1967. No appeal or revision was filed by the appellant against the said decree. Subsequently, Title Suit No. 29 of 1980 was filed by the appellant praying for declaration that the ex parte judgment and decree passed in Title Suit No.94 of 1964 is illegal. The said suit was decreed on compromise in spite of the fact that the defendant No.1 filed an objection raising the ground that his signature has been forged. When the suit was decreed on compromise the defendant No.1 filed tile appeal against the said compromise and the compromise decree has been set aside by the first appellate court. However, the matter is pending before the second appellate court. According to the learned counsel since the settlement Patta in favour of the appellant has already been annulled under Section 4 (h) of the B.L.R. Act proceeding the appellant is precluded from claiming exclusive right title over the said property on the basis of Ext. B series as now the said Ext. B series are non-existent in the eye of law. In such view of the matter, the learned court below has rightly decreed the plaintiffs’ suit for partition. 13. The learned counsel further submitted that so far the property settled by defendant No.1 in the name of his first wife Saraswati Devi is concerned it has not been annulled by the authorities under the Bihar land Reforms Act and, therefore, unless the settlement is annulled it cannot be held that Saraswati Devi is not the owner of the property. The learned counsel further submitted that defendant No.4 Kunkun Mishra who was examined as DW 16 in his evidence clearly admitted that the settlement in favour of Saraswati is legal settlement made by Mahanth Raghunath Das and since after settlement Saraswati Devi is in exclusive possession of the same. Further the learned counsel in course of his argument submitted that in future if the settlement in favour of Saraswati Devi is also annulled -9- in proceeding under Section 4(h) of the B.L.R. Act it will be open for the appellant to claim partition of the property but in view of provision contained in Section 35 of the B.L.R. Act the said matter cannot be decided in this partition suit by the civil court. According to the learned counsel Section 35 of the B.L.R. Act bars the jurisdiction of the civil court. On these grounds, the learned counsel submitted that there is no illegality in the impugned judgment and decree and, therefore, the first appeal is liable to be dismissed with costs. 14. In view of the above submissions of the parties, the points arises for decision in this appeal is as to whether the plaintiffs have been able to prove unity of title and possession over the suit property and are therefore, entitled to partition to the extent decreed by the court below or whether the suit for partition is bad for partial partition and whether the impugned judgment and decree are sustainable in the eye of law ? 15. According to the plaintiffs’ case suit properties is the joint family property. According to the defendant-appellant the said properties were settled by the ex-intermediary i.e. defendant No.1 for her maintenance in the year 1943-1945 through Ext. B series and since then she is in possession of the property and, therefore, the plaintiffs have no right, title and interest in the said property and the appellant is the exclusive owner thereof. Secondly, the case of the defendant is that late Mahanth Raghunath Das also settled properties mentioned in written statement in the name of his first wife Sarshwati Devi for her maintenance but the plaintiffs intentionally did not include the said property in the present suit, therefore, the partition suit is bad for partial partition. From perusal of the impugned judgment it appears that the defendant appellant submitted before the trial court that if the property settled in the name of Saraswati Devi is included in the suit -10- and it is partitioned the appellant has got no objection for the partition. The same prayer has been made by the learned counsel for the appellant before this Court and in fact Interlocutory Application No. 3263 of 2009 has been filed on behalf of the appellant for inclusion of those properties in this suit for partition. 16. In view of the above facts, it is to be seen as to whether the appellant is the exclusive owner of the suit property and likewise it is also to be decided as to whether the property settled in the name of Saraswati Devi is to be included in the suit or not. To prove their cases the parties have adduced oral as well as documentary evidences. 17. PW 1 to PW 11 and PW 13, PW 16, PW 18 to PW 33 are formal witnesses, they have proved documents. 18. PW 12 Devnarain Pathak has stated that he was working with Mahanth Raghunath Das since last 25 years and was looking after the lands of the family at Sitamarhi, Patna and Punoura. After his death also he is looking after the lands. He has further stated that all the properties situated at Sitamarhi, Patna and Punoura have been included for partition in this suit and the said properties are joint family property. He has also supported the genealogy. Here it may be mentioned that so far genealogy is concerned it is admitted by the parties. PW 14 Yogendra Prasad Yadav had stated that he has his land by the side of land of Mahanth Raghunath Das at Punoura. The said property of Mahanth Raghunath Das is being looked after by his son Binod Mishra with the help of Deonarain Pathak PW 12. PW 15 has stated that the properties situated at Sitamarhi about 22 bigha is the joint family property of the parties. The properties are being looked after by PW 12. PW 17 has stated that he was looking after the estate of Mahanth Raghunath Das. All the suit properties are joint family -11- property. He does pairvi on behalf of the plaintiff in this case. It may be mentioned here that Saraswati Devi is sister-in-law of this witness. 19. DW 11, 13 and 15 have only stated that the suit properties are in possession of either appellant or her son Kunkun Mishra. DW 16 is Kunkun Mishra himself. He has stated the same thing as pleaded in the written statement. However, so far the property settled with Saraswati Devi is concerned he has stated that the settlement made by Mahanth Ji in the name of Saraswati Devi is correct and Saraswati Devi is in possession of the said property still today vide his evidence at page 6. DW 23 is handwriting expert. All other witnesses including DW 24 are formal witnesses. 20. These are the oral evidences adduced by the parties. So far the evidences adduced by the defendant are concerned their case is that the defendant No.4 or the appellant-defendant No.3 are in possession of the property. It may be mentioned here that the defendant No.4 had filed separate written statement. The defendant No.3 appellant had filed separate written statement and according to her she is exclusive owner of the suit property which has been settled by Mahanth Raghunath Das in her favour in 1943-45. It may be mentioned here that she has not been examined to substantiate her case made out in her written statement. However, let us consider the documentary evidences adduced on behalf of the parties. It may be mentioned here that both parties have filed various documents i.e. the rent receipts, mutation orders, mutation appeal orders and various other documentary evidences relating to revenue matters which are not so very relevant for deciding the questions raised between the parties. From perusal of the impugned judgment and decree, it appears that the learned court below has cataloged all these documentary evidences. However, in this case the documents which -12- are relevant for the purpose of deciding the points raised by the parties are being considered hereinbelow. 21. According to the learned counsel for the appellant the present suit is barred by res judicata because all the suit properties were subject matter of earlier Title Suit No. 94 of 1964 and then Title Suit No. 29 of 1980 and, therefore, the same question cannot be decided in this present suit. So far the claimed of the appellant is concerned here claim is that the suit properties was settled by her husband the ex-intermediary by settlement Patta Ext. B, B/1 and B/2. Therefore, entirely the defendant appellant’s claim based on Ext. B series. From perusal of Ext.4, the order passed by this High Court on 16.12.1991 in C.W.J.C. No. 8331 of 1991 it appears that the said settlement Patta was the subject matter of a proceeding under Section 4 (h) of the Bihar Land forms Act and the Collector held that the settlement was not a valid settlement and, therefore, cancelled the same in the year 1963. The said cancellation order was challenged before the appellate court which was also dismissed. The order passed by the Deputy Collector in-charge Land Reforms Sitamarhi in the proceeding under Section 4 (h) of the Bihar Land Reforms Act has been marked as Ext. 18(i). It has been held in the said order that the settlements are Farzi and, therefore, it is annulled. The appellate order is Ext.18(F). This order was challenged before the High Court in writ jurisdiction as aforesaid. In spite of the aforesaid order of annulment when the appellant was trying to dispose of the property, late Mahanth Raghunath Das filed Title Suit No. 94 of 1964 praying for injunction restraining Krishna Devi appellant from disposing of the property. The said suit was decreed by terms of judgment and decree dated 20.9.1967 vide Ext.18/B. It may be mentioned here that during the pendency of the said suit interim injunction was granted by the court -13- below by terms of order dated 2.9.1964. The said interim order has been marked as 18(C). Against the said interim order of injunction Misc. Appeal No. 136 of 1964 was filed by Smt. Krishna Kumari Devi before the Additional Subordinate Judge, Muzaffarpur. The said misc. appeal was dismissed on 11.8.1965. The order of the appellate court has been marked as Ext. 17-C. As stated above, ultimately suit was decreed ex parte on 28.9.1967. The decree is Ext.18-B. 22. It appears that subsequently, Smt. Krishna Kumari Devi filed Title Suit No. 29 of 1980 praying for the reliefs for declaration that the decree passed in Title Suit No.94 of 1964 is illegal. Subsequently, a compromise application was filed in the said Title Suit No. 29 of 1980 which has been marked as Ext. H/3 along with the orders passed in the said suit. From perusal of the order-sheet dated 16.8.1997 it appears that Mahanth Raghunath Das filed an application on 12.3.1982 challenging the genuineness of the compromise petition and he denied his signature on the compromise petition. After inquiry the compromise was recorded and the suit was disposed of. Against the said order late Mahanth Raghunath Das filed appeal being Title Appeal No. 2 of 1997. At the time of hearing of the partition suit the said appeal was pending. However, during the course of hearing both the learned counsels submitted that the appeal has been allowed and the compromise decree passed in Title Suit No. 29 of 1980 has been set aside and the second appeal has been filed before this court. However, no such documents have