FIRST APPEAL No. 237 OF 2005 Against the judgment and decree dated 18.05.2005(decree signed on18.06.2005) passed by Sri Baleshwar Sharma, Sub Judge III, Patna City in Title Partition Suit No.223 of 2000. SURESH PRASAD & ORS. ………. Plaintiffs-Appellants Versus SARYUG PRASAD & ORS. ……… Defendants-Respondents ******** For the Appellant : Mr. Rama Kant Sharma, Sr. Advocate Mr. Rajesh Kumar, Advocate and, Mr. Narendra Kumar Singh, Advocate with him For the Respondent : Mr. Jitendra Kishore Verma, Advocate Mr. Gautam Shah, Advocate Dated : 12th day of May, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The plaintiffs have filed this First Appeal against the judgment and decree dated 18.05.2005 passed by Sri Baleshwar Sharma, the learned Subordinate Judge III, Patna City in Title Partition Suit No.223 of 2000 dismissing the plaintiff-appellant’s suit for partition. (2) The plaintiffs-appellants filed the aforesaid partition suit claiming half share in the suit property alleging that Bhagwan Das Yadav was the father of plaintiff no.1 and defendant no.1. The other plaintiffs are the sons of plaintiff no.1 and likewise, the other defendants, first set are the sons of defendant no.1 and rest defendants-respondents are the Mungeshwar Sahoo, J. 2 purchasers. Bhagwan Das separated from his brother, Ram Brichha Yadav. Bhagwan Das was the karta of the family consisting of his sons and grandsons and he died in jointness with them in the year 1993. The mother of the plaintiff no.1 and defendant no.1 also died in the year 1998. The plaintiffs and the defendants are separate in their mess, residence and earning but since there was no partition by metes and bounds, they have got unity of title and possession over the ancestral joint family properties which are the subject matter of the suit. In jointness, defendant no.1 has transferred some part of the joint family property without any legal necessity. Therefore, the plaintiffs demanded partition but the defendant refused. Hence, the suit for partition was filed. (3) On being noticed, the defendant-respondent nos.1 to 4 filed contesting written statement. The minor defendant no.3 filed separate written statement through guardian ad litem. The defendants besides taking various ornamental pleas mainly contended that there was a previous partition in the family during the lifetime of Bhagwan Das Yadav in the year 1991. According to that partition, the parties came in exclusive possession of their respective shares and they also transferred some of the lands allotted to them in the partition. Defendant no.1 transferred 10 dhurs land out of his share in plot no.142 and similarly his father Bhagwan Das Yadav also transferred 15 dhurs land out of plot no.142 to Brahamdeo Narayan Singh who is defendant no.5. On the death of Bhagwan Das Yadav, the plaintiff no.1, Suresh Prasad created some trouble regarding the house property and, therefore, the parties jointly appointed Arbitrators for settlement of their dispute. The said Arbitrators resolved their dispute and a memorandum of partition was 3 prepared on 30th July, 2000 which bears the signatures and L.T.I. of the plaintiff no.1 and defendant no.1 and also all the Arbitrators. The Arbitrators allotted the house situated at Varis Khan-Ka-Talab in favour of the plaintiff exclusively and in lieu of the share of defendant no.1, the defendant no.1 was allotted 4 kathas land of plot no.284 under khata no.537 out of the plaintiffs 9 katha share. In previous partition, the plaintiff no.1 and the defendant no.1 were given half and half share in plot no.284 under khata no.537 measuring 56 decimals. 56 decimal is equal to 18 katha. After memorandum of partition dated 30.07.2000(Exhibit-D), 40 decimals in the northern side was allotted in favour of defendant no.1 whereas 16 decimals in the southern side was allotted in favour of the plaintiff. After that partition, the defendant no.1 invested Rs.6 lacs and constructed house on plot no.284. (4) The defendant no.4 is the purchaser, Manorma Devi from the defendant no.1. She filed written statement in the same line as that of the defendant no.1. She has further added that after purchase, she has been mutated with respect to the purchased land and is in possession thereof. Her land was demarcated in plot no.142 in presence of the plaintiff but the plaintiff did not raise any objection. The defendant no.4 has constructed her house on the said land. (5) On the basis of the aforesaid pleadings of the parties, the learned Court below framed the following issues: I. Is the suit as framed maintainable? II. Have the plaintiffs valid cause of action for the suit? III. Is the suit barred by the principles of waiver, estoppel and acquiescence? 4 IV. Is the suit barred by law of limitation? V. Is the suit bad due to defect of parties? VI. Have the plaintiffs and the defendants got unity of title and unity of possession over the suit property? VII. Had the defendant no.1, Saryug Prasad acquired right to execute the sale deed with respect to the suit property? VIII. Whether the plaintiffs are entitled to the partition decree or other reliefs claimed in the plaint or to any other relief or reliefs? (6) After trial, the learned Court below while deciding issue no.VI held that there was a partition of the joint family property and the parties are in possession of the suit property according to their share as such, there is no unity of title and possession vide paragraph 18. At paragraph 19, the learned Court below while decided issue no.VII held that the defendant no.1 being exclusive owner of half area in plot no.142 was competent to transfer the same which was allotted to his share. At paragraph 20, the learned Court below held that since there had already been previous partition, the plaintiffs have no right to claim re-partition of the property. On these findings, the learned Court below dismissed the plaintiff’s suit. (7) The learned senior counsel, Mr. Rama Kant Sharma appearing on behalf of the appellant submitted that the learned Court below has wrongly interpreted the family arrangement to be partition by metes and bounds. The learned Court below has wrongly interpreted and misread the evidences produced on behalf of the parties. According to the learned counsel, the evidences relied upon by the learned Court below are not sufficient to prove that there had been partition of the joint family by metes and bounds. The learned Court below has wrongly relied 5 upon Exhibit-D said to be Arbitration Award dated 30.07.2000 which was never signed by the plaintiff. According to the learned counsel, by misrepresentation, the defendant no.1 obtained signature on blank papers on the pretext that his name will be mutated with respect to half share. In the evidence at paragraph 21, the defendant no.1 has admitted that he is ready to give half share in the suit property and, therefore, on this admission of the defendant no.1 in his evidence, the suit should have been decreed in view of the provision as contained in Order 12 Rule 6 C.P.C., but the learned Court below has wrongly not decreed the plaintiff’s suit. The learned Court below has wrongly relied upon the complaint case and also the compromise application which are inadmissible in the evidence and moreover, on the basis of the said statement in the complaint application and compromise, no finding can be recorded that there had been partition of the joint family property. The alleged memorandum of partition(Exhibit-D) is unregistered and, therefore, it could not have been admitted in evidence in proof of the partition. (8) The learned counsel further submitted that an amendment application was filed for amendment of the plaint to the effect that on the pretext of mutation and amicable partition, signature and thumb impression was obtained by the defendant no.1 on three pages plain paper. The said amendment was allowed but the learned Court below disbelieved the case of the plaintiff wrongly. Further, second amendment application was filed on 11.02.2005 for clarification of description of property and to bring on record the fact that unlawful construction was being made on plot no.284 which was let out to some private school and the defendant no.1 was collecting Rs.15,000 per month as rent and that 6 there had been amicable family arrangement in the year 1992 wherein both the brothers were allotted half and half share in the joint family property but the said amendment application was rejected. The appellant filed Civil Revision No.523 of 2005 which was also dismissed with liberty to the plaintiff to raise such questions in the appeal and, therefore, the appellants are raising this question in this appeal. The learned Court below should have allowed the amendment application which was wrongly rejected by the Court below. The learned counsel further submitted that so far area of plot no.733 is concerned, it is only 3 ½ decimals but in the plaint schedule, it has wrongly been typed as 8 decimals and, therefore, there was unequal division of the suit property. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s suit be decreed. (9) Mr. Jitendra Kishore Verma, the learned counsel appearing on behalf of the respondents submitted that the plaintiffs filed the suit simply saying that the suit property is joint family property and the plaintiff no.1 being the brother of defendant no.1 is entitled for half share and when the defendant produced the documents in proof of the previous partition in defence thereof, the plaintiff prayed for amendment in the plaint. So far Exhibit-D is concerned, it is not only signed by the plaintiff but it is also signed by the father-in-law of the plaintiff. The signature of the plaintiff is admitted by the plaintiff but the defence is that it was obtained fraudulently by the defendant no.1 on plain paper which cannot be relied upon because there was strained relationship between defendant no.1 and the plaintiff no.1 during that period and a complaint case had been filed by the plaintiff no.1 against the defendant no.1 and 7 his entire family members. In such circumstances, the defence of the plaintiff regarding Exhibit-D is concerned, it is not acceptable. The learned Court below has discussed all the material evidences available on record and has given good reasons for the findings that there had already been partition between the parties, therefore, the findings cannot be interfered with in this appeal. So far application of Order 12 Rule 6 C.P.C. is concerned, in the facts and circumstances of the case, it is not applicable. The defendant has not admitted the case pleaded by the plaintiff and moreover, it is well settled principles of law that the entire evidence is required to be gone through and not one line stray statement. The learned Court below has also considered this aspect of the matter and has rightly not decreed the suit under Order 12 Rule 6 C.P.C. The learned counsel further submitted that no case was made in the plaint that the dispute is with regard to plot no.284. At the time of argument i.e hearing of the suit in the year 2005, it was submitted before the Court below that the price of the land comprised within plot no.284 has increased and, therefore, if 50% share is given in that plot, the plaintiff will not claim anything else. This offer was considered by the Court below and rightly it has been found that subsequently when the price increased, the plaintiff claimed 50% share. Earlier when there had been partition in the year 1991 during the lifetime of their father, the plaintiff was granted 50% share in plot no.284. At that time both the parties were residing in the ancestral house in plot no.733. When the plaintiff created trouble and filed complaint cases, for amicable settlement of the dispute, the parties referred their dispute to Arbitrators who resolved their dispute and a memorandum was prepared on 30.07.2000. According to the Arbitrators, the plaintiff was given the 8 entire ancestral house on plot no.733 and in lieu of the share of defendant no.1 in that house, the plaintiff was directed to give 4 katha land out of his share in plot no.284. So, there had already been partition in the year 1991 and subsequently, because of the plaintiff no.1 himself in presence of his father-in-law who was one of the Arbitrators, the dispute was resolved. According to the learned counsel, there cannot be any successive partition till the plaintiff’s satisfaction and moreover, the award of the Arbitrator is not a waste paper and cannot be thrown in the dustbin. So far submission of the learned counsel for the appellant that area of plot no.733 measures only 3 ½ decimal is concerned, it is not reliable because it is the specific case of the plaintiff and the area has been mentioned in the Schedule of the plaint. Still today, there is no amendment. Moreover, considering the area and the ancestral house standing thereon, the defendant no.1 has been given only 4 katha land in plot no.284. Therefore, area is not required to be seen rather in partition suit, the value is important. In lieu of half share in the house constructed thereon, the defendant no.1 has been allotted 4 katha vacant land and the defendant no.1 has already constructed house thereon investing more than Rs.6 lacs. Now, therefore, the plaintiff is not entitled for reopening of the said previous partition. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. (10) In view of the above rival contentions of the parties, the point arises for consideration in this appeal is as to “whether the plaintiffs are entitled to half share in the suit property” and “whether the impugned judgment and decree are sustainable in the eye of law?” 9 (11) According to the plaintiffs, the parties are separate in mess, residence and business but there had been no partition by metes and bounds of the joint family property. This is the simple case of the plaintiff in the plaint. On the contrary, the defendant’s case is that during the lifetime of their father, there had been partition in the year 1991 and the parties came in exclusive possession of their respective shares. Thereafter, they also sold some of the properties out of their share. After death of their father, the plaintiff no.1 again created trouble and, therefore, punches were appointed who gave award which is Exhibit-D. In support of their respective cases, the parties have adduced oral as well as documentary evidences. It is well settled principles of law that a joint Hindu family continues to be joint unless the contrary is proved. In the present case, according to the plaintiffs themselves, the parties are separate in mess, residence and earning. So, there is severance in coparcenary status of joint family. Only the question is whether there had been partition between the parties with regard to the suit property. Nowhere in the plaint it is the case of the plaintiff that he is in possession of unequal share. As stated above, his simple case is that there had been no partition. (12) P.W.1 is Suresh Prasad, plaintiff no.1. In paragraph 6 of his evidence, he has admitted that the defendant nos.4 and 5 have purchased separate landed properties from defendant no.1. His father died in 1993 and the parties came in joint possession and the defendant no.1 became the karta. Although, they are separate in residence and mess but there has been no partition by metes and bounds. The father of the defendant no.1 and plaintiff no.1, Bhagwan Das Yadav was under the clutch of defendant no.1. Without knowledge of the plaintiff, 15 10 dhurs land was sold on 17.12.1992 in favour of Brahamdeo Narayan Singh, defendant no.5 and likewise, the defendant no.1 for self and on behalf of his minor sons transferred 10 dhurs land on 26.09.1994 in favour of defendant no.4. The plaintiff has got half share in the suit property. He has denied that there had been partition between them in the year 1991. At paragraph 16 of his evidence which has been filed in the form of affidavit, he has clearly stated that plot no.733 measures 8 decimal on which ancestral house is situated. Another house is on plot no.874 measuring 2 decimal. P.W.2 has also stated that plot no.733 measures 8 decimal wherein there is a house. The suit lands are ancestral land of the parties and the parties are members of the joint family and there had been no partition. P.W.3, Lal Babu Yadav is son of Ram Brichha Yadav. It may be mentioned here that Ram Brichha Yadav is brother of Bhagwan Das Yadav. At paragraph 2 he has also stated that plot no.733 measures 8 decimal. The punchnama dated 30.07.2000 has been illegally prepared by defendant no.1. The defendant no.1 got signature of plaintiff no.1 on blank and stamp paper on the pretext that his name will be mutated in half of the suit property. It may be mentioned here that the plaintiff himself who has been examined as P.W.1 has not stated anything in his examination-in-chief regarding the illegal preparation of Exhibit-D or that obtaining of his signature fraudulently on blank paper. Further, it may be mentioned here that the defendants in the written statement clearly mentioned the date and the award of the punches and signature by the plaintiff and punches on Exhibit-D. From perusal of examination-in-chief on P.W.1 as discussed above, there is no whisper about his signature on Exhibit-D or about illegal creation of Exhibit-D by the defendant no.1. In fact, he has not 11 denied the case of the defendant no.1. However, in the cross- examination at paragraph 22, he has admitted that there was panchayati but has stated that it was not accepted and defendant no.1 obtained his signature on plain paper on 30.07.2000. Therefore, he has admitted his signature on 30.07.2000. Exhibit-D filed by the defendant is dated 30.07.2000. P.W.4 has also stated that plot no.733 measures 8 decimal. He has stated the same thing as that of Suresh Prasad, the plaintiff. These are the oral evidences adduced on behalf of the plaintiff. Therefore, their case is that the suit property is joint. The plaintiff has admitted that some of the property has been sold by Bhagwan Das and also defendant no.1. (13) D.W.1 is the defendant no.1, Saryug Prasad. He has fully supported his case made out in the written statement. According to him, there had been partition in the year 1991. On the death of their father, the plaintiff again started creating problem and, therefore, again with their consent their dispute was referred to punches. In the panchayati both the parties were present and the punches resolved their dispute. Thereafter, a punchnama was prepared wherein both the parties have put their L.T.I. and also signed on it and the punches also signed on it. He has named the punches. After the decision of the punches, defendant no.1 left the old house on plot no.733 and went to the house of plot no.774. Then he constructed house on plot no.284 but the plaintiff did not raise any objection. The other witnesses examined on behalf of the defendants have also supported the case of the defendants. From the discussion of the oral evidences of the parties, it appears that there are oral evidences versus oral evidences. One party is saying that there had 12 been no partition and the other party is saying that there had been partition. Now let us look to the documentary evidences. (14) As has been stated above, the plaintiff has admitted that the father, Bhagwan Das Yadav and defendant no.1 have sold some properties. The defendants have produced the sale deeds which have been marked as Exhibit-4 and Exhibit-4/A. Through Exhibit-4, the sale deed dated 14.09.1992, Bhagwan Das Yadav and Saryug Prasad Yadav sold 15 dhurs land of plot no.142 comprised within khata no.260 in favour of Brahamdeo Narayan Singh. In the said sale deed, it is mentioned that there had been partition between the plaintiff, the defendant no.1 and their father, Bhagwan Prasad. The transferred land measuring 15 dhurs was allotted in the share of vendor. Likewise, from perusal of the sale deed, Exhibit-4/A dated 27.09.1994, executed by defendant no.1 in favour of defendant no.4, it appears that there is clear recital that there had been partition between the parties. It may be mentioned here that these statements have been made by the father of the parties and also defendant no.1 in the year 1992 and in the year 1994 when there was no dispute between the parties. The learned counsel for the appellant submitted that those partitions were according to convenience only. So far this submission is concerned, it is not acceptable because it is not the case of the plaintiff that the parties were cultivating the lands according to their convenience. The specific case is that their mess, residence and earning was separate. This pleading is in consonance with the case of the defendant and the statements made in the sale deeds. Had there been separation according to convenience then the plaintiff should have objected to the transfer of the joint family 13 property and moreover, if the property was joint then the plaintiff should have also been joined as vendor in both the sale deeds. (15) Exhibit-C is a complaint application which has been numbered as complaint case no.33 of 2000. This complaint case was filed by the plaintiff against the defendant no.1 on 21.01.2000. In paragraph 2, he has admitted that there was a partition by arbitration and the parties are living separately and the plaintiff was not concerned with Saryug Prasad. From this Exhibit-C, it appears that the plaintiff himself admitted that there had been partition between the parties and they were living separately. The learned counsel for the appellants submitted that this complaint was filed in January, 2000 and it is stated that there had been partition by arbitration whereas according to the defendants, the punches gave award on 30.07.2000. Therefore, it cannot be said that the plaintiff admitted the arbitration pleaded by the defendant. So far this submission is concerned also, I find no force because according to the defendant’s case, there had already been partition between the parties during the lifetime of their father, Bhagwan Prasad. This partition admitted by the plaintiff in Exhibit-C referred to the said partition of the year 1991. The case of the plaintiff is that there had been no partition whereas in Exhibit-C he is admitting that there has been partition. It is not the question or controversy between the parties by what means the partition of the year 1991 took place. It is well settled principles of law that admission is the best evidence. Here, the plaintiff is admitting about the previous partition. There is no explanation as to under what circumstances he is admitting this fact. 14 (16) Exhibit-D is the alleged punchnama dated 30.07.2000. It appears that this document has been signed by the plaintiff no.1 and defendant no.1 and also by the Arbitrators. The plaintiff no.1 and defendant no.1 also put their L.T.I. The explanation given by the appellant that the defendant no.1 by practicing fraud, obtained signature of the plaintiff on blank papers. So far this explanation is concerned, it is not acceptable at all. We have seen above that the complaint case was filed in January, 2000 and there was strained relationship between both the brothers. In such circumstances, it is not expected that one brother will not only sign but also put his L.T.I. on three blank papers. One of the pages is stamp paper and the signature is on the left side margin of the paper. It appears that the punches have also singed. At paragraph 24, P.W.1, the plaintiff has admitted that his father-in-law who was one of the punches has