Appeal from Original Decree No.411 OF 1974 Against the judgment and decree, dated 30.4.1974 passed by Shri Satyendra Prasad Sinha, Subordinate Judge, Madhipura in Title Suit No. 2 of 1967. ……. 1. Ramawati Devi, wife of Late Anup Lal Yadav, 2. Radha Devi, daughter of Late Anup Lal Yadav, 3. Upendra Narain Yadav, 4. Bindeshwari Prasad Yadav, 5. Dev Narain Yadav, 6. Tejnarain Yadav, 7. Ram Narain Yadav @ Ram Narain Mandal, all sons of Late Anup Lal Yadav, 8. Satya Bhama Devi, 9. Sail Kumari Devi, 10.Subodh Kumari, all daughters of Late Sarjug Prasad Yadav, 11.Vishwanath Yadav, 12.Dip Narain Yadav, both sons of Late Sarjug Yadav, 13.Kamal Kishore Yadav, son of Late Sarjug Yadav, 14.Jai Narain Yadav, 15.Chit Narain Yadav, sons of Brahmi Yadav, 16.Uma Kant Yadav, 17.Madhur Yadav, 18.Bimal Yadav, 19.Harendra Yadav, 20.Manikant Yadav, all sons of Late Jagdeo Mandal, 21.Sumitra Devi, 22.Radha Devi, both daughters of Late Jagdeo Mandal, 23.Renu Devi, daughter of Late Jagdeo Mandal, 24.Srimati Mhular Devi, wife of Shiv Narain Mandal, all residents of village Bhelwa Tola Garhiya, PS Madhepura, District Saharsa. 25.Savitri Devi, 26.Rukma Devi, both daughters of Lachhanbati Devi, 27.Anandi Yadav, 28.Bhim Yadav, both sons of Surma Devi, 28.Rekha Devi, 29.Indu Devi, both daughters of Surma Devi, 30.Devi Rani Devi, wife of Late Arjun Yadav, 31.Abhimanye Kumar, son of Late Arjun Yadav, 32.Ranju Kumari, daughter of Late Arjun Yadav, all residents of village Mohanpur, P.S. Singheshwar, district Madhepura .. .. .. Appellants. versus 1. Krishnanand Yadav, 2. Ramanand Yadav, both sons of Sital Yadav, 3. Rudra Narain Yadav, son of Rasik Lal Yadav, 4. Bilakchheni Devi, wife of Rasik Lal Yadav, all of village Bhelwa, PS Madhepura, district Saharsa. 5. Smt. Padma Devi, daughter of Rasik Lal Yadav and wife of Raghunandan Yadav, village Aran, Ps and Dist. Saharsa. 6. Smt. Shanti Devi, daughter of Rasik Lal Yadav and wife of Bibhishan Yadav, village Manhara, PS Madhepura, Dist. Saharsa. 7. Smt. Niro Devi, daughter of Rasik Lal Yadav and wife of Raja Ram Yadav, village Sakarpura, PS Madhepura, Dist. Saharsa. 8. Smt. Khikhari Devi, daughter of Rasik Lal Yadav and wife of Bhato Yadav, resident of village Garhiya (Balam), PS Madhepura, Dist. Saharsa. 9. Rani Devi, 10.Krishna Devi, both daughters of Smt. Bacha Devi, residents of village Gachia (Bhelwa), PS and District Madhepura. 11.Smt. Triful Kumari, 12.Sri Arhul Kumari, daughters of Rasik Lal Yadav, village Bhelwa, Tola Garhiya, PS Madhepura, Dist. Saharsa. 13.Niranjan Devi, 14.Ratan Devi, 15.Salochan Devi, 16.Renu Devi, all daughters of Late Ramji Yadav, 2 17.Shivaji Yadav, son of Bhagwat Yadav, 18.Suman Yadav, 19.Khokha Yadav, sons of Late Ramji Yadav, 20.Kailash Yadav, 21.Tarni Prasad Yadav, sons of Naubat Prasad Yadav, 22.Renu Devi, 23.Babalu Kumar, 24.Reshmi Devi, 25.Rami Devi, 26.Sanjai Kumar Yadav, son of Sri Kailash Prasad Yadav, all of village Bhelwa, Tola Garhiya, PS Madhepura, District Saharsa .. .. Respondents. … For the appellants : Mr.Shashi Shekhar Dwivedi, Senior Advocate and Mr. Anish Chandra Sinha, Advocate. For the respondents: Mr. Birendra Mohan Singh, Mr. Ganesh Chandra Thakur and Mr. Ajay Kumar Singh, Advocates. … P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. The plaintiffs had filed a suit for partition claiming 8 Annas share in the family property. The parties to the suit and the relationships between the plaintiffs and the defendants is indicated in the genealogical table which is given below : 3 2. The plaintiffs’ case is that Phuli Mandal died in the state of jointness with his two sons. After the death of Phuli Mandal, Hira became the Karta and he died in the state of jointness with Kallar. Kallar Mandal did not become Karta of the family as he was not having the capability to look after the family property. Rather, Neklal Mandal, son of Domal Mandal became Karta of the family as Kallar Mandal was not capable of managing the affairs of the family. Neklal Mandal being a clever and resourceful person taking advantage of the simplicity of Kallar Mandal prepared several documents including rent receipts etc. in his name and in the name of his family members. Nek Lal died in jointness in the year 1942 and thereafter Jasik Lal Mandal became the Karta of the family. After the death of Kallar in the year, 1950-51, the two branches separated in mess only but the properties remained joint. As the plaintiffs felt difficulty in cultivation of the lands, they demanded partition and hence the suit. 3. The case of the defendants is that Hiralal died during the survey proceedings after which Hazari became the Karta of the family. After the death of Hazari Mandal, his son Kallar became the Karta of the joint family in the year, 1922. Neklal Mandal, Nanki Mandal and Kalhar Mandal separated from each other and the family divided the properties between the three branches and separate Tekhtas were prepared which were reduced in writing. It is the specific case of the defendants that the joint family did not have any source of income to acquire the property, rather, Neklal Mandal acquired certain lands from the income which he derived from his business. It is further stated that Neklal Mandal received gifts from his father-in-law from which he acquired certain plots of lands. The 4 document of partition was prepared in three copies and was given to each branch of the family. The said partition was made amicably between the brothers. It has also been stated that in order to establish peace and harmony in the family, particularly as the branch of the plaintiffs were allocated 5/4th share instead of 4 Annas. Neklal Mandal agreed to divide the lands of Khata nos. 54 (ka) and 55 in Mauza Belbha Tola again after the partition. Similarly lands of khata no. 123 which was purchased by Neklal Mandal was also divided and portion of the lands allocated to the plaintiffs’ branch. It is also the specific case that certain lands which were with the family who were the mortgagee of the lands were subsequently purchased by the family and these lands were also part of the partition effected in 1922. Certain lands mentioned in Schedule ‘D’ of the written statement were kept common to the three branches. 4. On the basis of the aforesaid pleadings, the defendants claim that the suit for partition is not maintainable. It may be mentioned here that the joint family property, according to the defendants, was about 100 bighas and subsequently it is said that Neklal Mandal purchased another 100 bighas or more of lands in his own name. 5. The court below has come to a finding that Exts. ’D’ and ‘D/1’, the documents of partition in 1922 was a valid document and has dismissed the plaintiffs’ suit. Apart from the partition deed the court below was impressed and swayed by the documents showing mutation of the lands and the rent receipts filed by the defendants to hold that partition had already been effected in 1922 and the parties have come into possession of their respective shares and were paying separate rent in accordance with the allocations of their share. 5 The questions that has to be considered by this court are: (i) Whether according to the evidence the plaintiffs have been able to show that a partition did not take place in 1922 ? (ii) Whether the documents of partition requires registration? (iii) Whether on the basis of the documents of partition it could be held that the 1922 partition was equitable? (iv) Whether the defendants have been able to show that they have subsequently acquired large portion of lands? 6. The court below has held that there was a previous partition of the joint family properties by virtue of the Sada document of partition prepared in 1922. The court has also heavily relied on the rent receipts produced on behalf of the defendants from the years 1938-39 to show that there was a partition and rent were separately paid in the names of the defendants in accordance with their share. The evidence of witnesses with respect to jointness has been disbelieved by the court below and the court has also brushed aside the sale deeds executed jointly in the year 1953 and, therefore, held that there was a previous partition in 1922 and, thus, dismissed the plaintiffs’ suit. 7. The main issue before this court revolves around the fact that whether the plaintiffs/defendants can by way of their pleadings and evidence prove that there was a partition in the year 1922. It is not disputed that the document of partition was on a Sada paper and was not registered one. 8. Before proceeding I may state that the 1922 document of 6 partition was destroyed in the Patna High Court during 1975 floods and, therefore, the parties agreed that this court on the basis of comments of the trial court, may proceed to consider this document. The main argument on behalf of the plaintiffs is that the deed of partition of the year 1922 should be rejected by this court in view of the fact that it is not registered and has relied on case laws to substantiate their submissions. It would, therefore, be relevant before discussing the law on the question to examine the pleadings with respect to partition which took place in 1922 and the evidence led by the parties to show that the properties were partitioned or alternatively as pleaded by the plaintiffs remained joint. The plaintiffs have specifically pleaded that the properties remained joint and there was no partition by metes and bounds between the members of the family. As opposed to the plaintiffs’ pleadings, the defendants at paragraphs 6 onwards have stated that the lands of the joint family were amicably divided into three separate takhtas of equal share by way of amicable family settlement and have further given the list of lands which were given to the branch of Kallar Mandal as Schedule ‘A’, Neklal Mandal and Jasiklal Mandal as Schedule ‘B’ and Nanki Mandal as Schdule ‘C’. It is further pleaded by them that each of the three branches were given copy of the family settlement. Their case is that the lands of khata no. 54Ka and 55 of Mauza Belba Tola Dariha was khas land of Neklal Mandal but Kallar Mandal insisted to have a share in those lands as well and as such by way of amicable family settlement in order to establish harmony in the family particularly because the branch of Kallar Mandal was getting less than his share instead of 4 Anaas share, Neklal Mandal agreed to divide the aforesaid lands again after the partition. With respect to khata no. 123 it is said that 7 Kallar Mandal demanded further partition and in order to pacify Kallar Mandal,2 bigha, 16 kathas and 16 dhurs of lands comprising plot nos. 1382, 1806, 1894 and 1970 were also given to Kallar Mandal as the defendants have also explained that about 5 bighas, 3 kathas and 7 dhurs and 15 dhurkis of khata no. 54K and 55 were then in Sudbharna of Neklal Mandal and the said lands were also divided in the aforesaid partition of 1922 but subsequently the three branches of the family purchased those lands which were later partitioned. 9. The further case of the defendants is that Schedule ‘D’ lands of the written statement were not divided in 1922 partition and were kept common. It is also the claim of the defendants that Neklal Mandal used to carry out small scale business with separate funds which he had got from his father-in-law and out of his income had purchased certain lands and that the plaintiffs have no title or interest with respect to those lands. On the basis of these pleadings the defendants’ case is that the parties were not joint after 1922 partition. 10. This court will refer to the evidence regarding the respective cases set out by the plaintiffs and the defendants. 11. PWs 5, 6, 9, 10 and 11 are the Bataidars who have stated that they were cultivating the lands on behalf of the joint family. The defendants have also produced witnesses who claimed to be cultivating the lands as Bataidars of Sital Mandal and they are DWs 13, 14, 15, 19 and 20 who have tried to show that they used to cultivate the lands and give the usufructs to Sital Mandal only. 12. On perusal of the evidence of the witnesses I find that the plaintiffs’ witnesses are able to give the boundary of the lands which 8 they were cultivating whereas the defendants’ witnesses have not been able to state the boundary or the plots which they were cultivating. 13. PW 1 has stated that he has land just next to some plots of lands of the plaintiffs and defendants. According to him the parties jointly cultivated the lands. It is stated by him that separate plots of lands are ploughed by different members of the family. PW 2 is related to PW 1 and according to him the family possessed 200 bighas of lands and is unable to give the details regarding the plots of land. The only relevant fact is that he has stated that the parties jointly cultivate their lands. PW 3 in fact does not support the case of the plaintiffs. According to him some lands are cultivated by Anup Mandal whereas other lands are cultivated by Bhagwat. PW 4 states that Neklal @ Manik Mandal was Karta of the family and gives details with respect to death of the family members. This witness was on litigating terms with Sital Mandal. He in fact does not support the case of the plaintiffs, rather, he states that the lands were separately cultivated by various members of the family. PW 7 has stated that he has no direct connection with the parties but he is aware of the fact that the parties jointly possess 200 bighas of lands. PW 8 has been examined to show that the father-in-law of Neklal Mandal lived in the village of this witness and he was not very rich. PW 12 is plaintiff no.2 of the suit. PW 2 is Upendra Narain Mandal, son of Anup Mandal. This witness gives the genealogical table which is not disputed by the parties. According to this witness lands of khata nos. 32, 68Ka and 377 were sold by Anup, Saryug and Laxmiwati Devi in 1953 which is Ext ‘2’. This witness also states that there was no partition between the parties and the lands were subsequently purchased by the joint family funds as the family had about 200 bighas of lands which 9 gave a sufficient income to purchase further lands. This witness has stated that it is incorrect on behalf of the defendants to claim that the lands were divided into three shares. In fact no partition ever took place. This witness has further stated that he has never paid rent or Chowkidari tax. He is also not aware as to the manner in which rent receipts were prepared. On recall plaintiff no.2 has denied the signature of Anup on the mortgage deed (Ext. ‘Q’). On suggestion Upendra Narain has denied that he has ever visited the block office and got rent receipts prepared with respect to the alleged share of lands. The evidence of PW 13 is not very relevant for the purpose of this case. 14. On summarizing the evidence it would be evident that the plaintiffs have tried to show that the properties were jointly cultivated and that the case made out by the defendants that there was a partition in 1922 remains un-substantiated. In fact, the defendants have not clearly cross examined the witnesses to try and demonstrate that they were in possession of lands according to the shares allocated to the plaintiffs’ branch since 1922 partition. 15. The defendants have examined thirty seven witnesses to prove their case. DW 1 Yogendra Pd. Has proved rent receipts Exts. ‘A’ to ‘A/7’ which is in the hand writing of Narain Lal. DW 2 has proved Exts. ‘A/8’ to ‘A/33’ which is in the hand writing of Kuldip Narain Mandal. DW 3 has proved exhibits A/34 to A/40 which is in the hand writing of Jeev Narain Lal. These witnesses have all stated that the rent receipts were not prepared in their presence. DW 4 has been produced to prove the deed of exchange (Exts. ‘B’ and ‘C’). DW 5 has been produced to prove a sale deed (Ext. C/1). However, in his cross examination he denied the knowledge of 10 the said document. DW 6 has tried to show that Sital is in possession and cultivates about 16 bighas of lands in his village. In the cross examination he denied knowledge of the said document. DW 6 has tried to show that Sital is in possession and cultivates about 16 bighas of lands in his village. In cross examination he has not been able to given the boundary of the lands in question. DW 7 has been produced to prove Exts.A/45 to A/57 and A/60 to A/89 which are rent receipts prepared by two different Karmcharies. This witness admits that the receipts were not prepared in his presence and he has not prepared any rent receipts in the name of Sital Mandal or others. DW 8 has tried to show that there was a partition between the three branches of the family. In cross examination he has not been able to support the case that he has made out in the chief inasmuch he says that he has no idea regarding the details of the lands although he claims that some of his lands are in the same village as that of Sital. He clearly states that he has no idea as to the specific lands cultivated by each members of the family or any one of them. Therefore, this witness has not been able to show that there was a partition between the branches of the joint family. DW 9 has proved Exts. A/92 to A/114, the receipts prepared by Ram Gulam Lal and Exts. A/125 to A/132 and A/133 to A/158 which have been prepared by different Karcharies. DW 10 is the Panch who had participated in preparation of the partition deed of 1922. His evidence is completely unreliable in view of the fact that he claims that his date of birth is 1909 which would mean that in 1922 he would be hardly 12-13 years old. This witness in fact demolishes the case of the defendants of partition of the year 1922. 16. DW 11 has proved Ext. C/2 which is a sale deed executed by Rameshwar Pd. Bhagwat. DW 16 has purchased about 16 11 kathas of land from Sital vide Ext. C/5 and claims to be in possession of the same. He has further stated that the lands which he had purchased from Sital were part and parcel of land which was purchased by Sital measuring about 13 bighas. DW 17 is the Karmchari. This witness had been working since 1965 in the concerned block as a Karmchari. According to him rents were separately paid by Bhagwat, Naubat, Malik, Jasik and Sital and Rudra Narain. In cross examination he has further stated that the husband of Ram Kumari used to pay rent on her behalf. This witness further states that he has not met Malik Mandal since eighteen to twenty years. This witness has stated that by order of the State Government jamabandi has been jointly prepared since the year 1963 in the name of the parties. Apparently, it appears that the plaintiffs had protested against the creation of a separate jamabandi and as such since 1963 a single jamabandi has been created. 17. DW 21 has been produced on behalf of Malik Mandal to show that the in-laws of Malik had sufficient means of income and had given him some money. However, this witness is not very reliable as he admits to be an accused in a murder case. 18. DW 23 aged about seventy six years claims to be one of the Panches at the time of partition. He also claims that he is purchaser from Bhagwat. It is said that the lands he had purchased belonged to Bhagwat and was not part and parcel of the joint family property. In cross examination this witness fails to establish that he was present at the time when the partition was made between the parties. This witness admits that some of the properties are joint even today. According to this witness, the plaintiffs and the defendants had no dispute before the filing of this case. According to me this witness has failed to substantiate his claim that he was a witness to the 12 partition deed; more significant is the fact that he claims that there was no signature of the Panches on the partition deed. 19. DW 24 is the Dafadar of Circle no. 5. An attempt has been made by the defendants to get the chowkidari receipts proved by him which have been marked as Exts. K/1 to K/5 issued by different persons. This witness states that the Dafadar is not responsible for maintaining the records of chowkidari receipts. 20. DW 25 has also proved the chowkidari receipts. He is Sarpanch of Circle No. 5 since 1960. He claims to identify signatures of persons who had issued the receipts. 21. DW 26 was a Panchayat Sewak from 1954 to 1972. He has prepared the Parivarik Pustika. According to him the parties lived separately. He claims to identify the signature of the Patwari who had issued receipts at Exts. A/24 to A/284. However, this witness claims that he has lands near the lands of the defendants, he could not give details regarding the shares allocated to the defendants or the plaintiffs and as such is not very reliable. 22. Similarly DW 27 has proved several rent receipts which are Exts. A/285 to A/291 and so on. These are Malguzari receipts. 23. DW 28 produced the documents from the record room. 24. DW 29 has produced Sanha (Ext. 2) which is not part of the paper book and the relevance has not been pointed out by either of the parties during the hearing of this appeal. As such this court will not make any comment on the Sanha (Ext. 2). 25. DW 30 has proved Ext. C/5 which is a sale deed signed by Anup, Sital and Bhagwat. This witness has also proved sale deeds, 13 Exts.,C/10 and C/11 and the rent receipts at Exts. A/323 to Exts. A/330. 26. DW 31 Sital Yadav is defendant no.1 in this case. He has made out a case that after partition in 1922, there was further partition between Neklal Mandal and Jasiklal Mandal. It is claimed that Jasik separated twelve years back from Neklal. The defendants claim that after the partition, the parties have been dealing with their respective shares and Malik Mandal has sold and purchased several bighas of lands. This witness took a long time in giving evidence before the court so much so that the court has remarked that the witness used to take too much time in answering each question and persisted in doing so in spite of court’s warning and the warning of his own lawyer. 27. After the aforesaid comment, the cross examination began. In the cross examination he virtually demolishes the case made out in the chief as he has not been able to give details with respect to the partition and possession of the properties of three branches of the family. At one place this witness has stated that there is no paper prepared with respect to the partition. He could not state as to how his father had the income to purchase lands. According to him, his Nanihal was very rich and they had 300 bighas of land. His branch of the family got 51 bighas of land after partition and Jasik got half of that land on