IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.73 of 2009 Satyanarayan Sah Versus Singhal Deep Sah & Ors ----------- 10. 29.11.2011 Heard the learned senior counsel for the appellant. 1. This appeal has been filed against the judgment and decree dated 24.12.2008 passed by the District Judge, Gopalganj in T.A.No.03/2007 reversing the judgment and decree dated 24.11.206 passed by Sub Judge I,Gopalganj in T.S.No.521/2002. 2. The title suit has been filed by the plaintiff for declaration of title and for further declaration that the sale deeds executed in favour of the defendant no.4 by the defendant nos. 1 & 2 are void documents. 3. The admitted facts are that the plaintiff and the defendant nos. 1 to 3 are descendants of a common ancestor but plaintiff has come out with the case that there had been already partition in the family in the year 1966 itself and thereafter the suit property has been acquired by him out of his own earning from business whereas the case of the defendant nos. 1 to 3 is that there had been no partition in the joint family and the suit property had been 2 acquired out of the joint family fund. The defendant nos. 1 to 3 have claimed that they were entitled to execute that two sale deeds in favour of the defendant no.4with respect to their shares in the joint family property. 4. The defendant no.4 has filed a counter claim in the suit praying for partition and carving out the property purchased by him through the two sale deeds executed by the defendant nos. 1 to 3. 5. The trial court after hearing the parties and considering their evidence has come to the finding that the suit property is the self-acquired property of the plaintiff Satya Narayan Sah and consequently has further held that the sale deeds executed by defendant nos. 1 to 3 in favour of the defendant no.4 are illegal and void documents and on the basis of these findings the suit has been decreed. 6. The appellate court, however, on reappraisal of evidence in view of the rival submissions and pleadings has concluded that there had been no partition in the joint family as claimed by the plaintiff and the suit property had been acquired in the name of the plaintiff by the joint family out of joint family fund. Consequently, the two sale deeds in favour of defendant no.4 have been held to be 3 legal and valid document and the counter claim of the defendant has been allowed holding the defendant no.4 to be entitled to get relief for partition of his purchased land. 7. The learned senior counsel for the appellant (plaintiff) has submitted that the appellate court below has committed serious error of law in recording the finding of jointness ignoring the material evidence on record suggesting to the contrary. It has also been urged that even otherwise also the plaintiff has acquired title by adverse possession over the suit property. It has been urged that joint family separated in mess and business in the year 1966 itself and the plaintiff had acquired the suit property out of his own income after separation and has been coming possession in the same since more than 25 years and the sale deeds which were in the name of the plaintiff had never been challenged by the defendants. It is also the contention of the learned counsel that the material evidence have been misinterpreted by the appellate court and the judgment of the trial court has been wrongly reversed. 8. After hearing the submissions on behalf of the appellant as well as perusing the judgments of the courts 4 below, it appears that the primal question between the parties to the suit is the partition in the joint family which the defendants have denied but the plaintiff has claimed to have taken place in the year 1966. The appellate court below has placed reliance upon Ext.C which is certified copy of plaint of Partition Suit no.164/71 which had been filed by the plaintiff alongwith his two brothers against their co-sharers wherein the plaintiff had asserted jointness. Further after the decree in the said partition suit the execution case had also been filed by the plaintiff with his brothers and Ext.D is the writ of delivery of possession containing the report of the advocate commissioner delivering possession to the plaintiff jointly with his brother Bhagwat Sah over the share allotted to them in the decree and the receipt given by them regarding the delivery of possession. Besides other documentary evidence, the reliance by the appellate court has also been placed upon Ext.B and Ext. F which shows that the conditional sale deed obtained by Bhagwat Sah on 15.03.1986 had been admittedly redeemed by the plaintiff on 07.02.1996 and the part of the money was also given to the defendant nos. 2 and 3. After considering the 5 documentary evidence the appellate court further considered that oral evidence as well for coming to the finding that there had been no partition in the family in the year 1966 as claimed by the plaintiff. 9. From the judgment of the appellate court, it appears that it was aware of the legal position that the question of existence of nucleus in the joint family was necessary to be considered in order to raise presumption of the suit property being joint family property. On examination of evidence including Ext.C the appellate court has come to the finding that sufficient nucleus in the joint family existed for the purchase of the suit property. Thereafter the evidence led by the plaintiff to establish his case of self-acquisition of the suit property has also been analysed and conclusion has been reached that the plaintiff had no personal income sufficient for purchase of the suit property and to raise construction over the same. On the basis of these findings the appellate court has come to the conclusion that plaintiff and defendant nos. 1 to 3 together have got half share each in the suit property and are in joint possession of the same. 10. On the basis of the abovesaid finding of unity of 6 title and jointness of possession over the suit property between the plaintiff and defendant nos. 1 to 3 the appellate court has further held that the sale deeds executed by the defendant nos. 1 to 3 in favour of defendant no.4 are legal and valid documents and accordingly, the counter claim filed by the defendant no.4 for partition and carving out the property purchased by him has been allowed. The case of acquisition of title by adverse possession by the plaintiff has also been negated by the appellate court as the plaintiff obviously could not have raised the said plea until he renounced his claim of title on the basis of his case of self-acquisition. 11. The judgment of the appellate court discloses meticulous analysis of the oral and documentary evidence of the parties and all the findings are based upon the evidence. During the course of submission, nothing could be established to show that the findings of fact as recorded by the appellate court are perverse. 12. There is no substantial question of law arising for consideration in this second appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)