FIRST APPEAL No. 174 OF 2001 Against the judgment and preliminary decree dated 25.01.2001 passed by Sri Lakshman Ram, Subordinate Judge 4th, Purnea in Title Suit No.192 of 1997. SMT. SUDHA DEVI ………. Plaintiff-Appellant Versus MOSTT. CHINTAMANI & ORS. ……… Defendants-Respondents ******** For the Appellant : Mr. Rabindra Nath Kanth, Advocate For the Respondent : Mr. Sidheswari Prasad Singh, Sr. Advocate Mr. Dhaneshwar Prasad Gupta, Advocate Dated : 28th 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 The plaintiff has filed this First Appeal against the impugned judgment and decree dated 25.01.2001 passed by Sri Lakshman Ram, the learned Subordinate Judge 4th, Purnea in title suit no.192 of 1997 dismissing the plaintiff-appellant’s partition suit. (2) The plaintiff-appellant, Smt. Sudha Devi filed the aforesaid partition suit being title suit no.192 of 1997 claiming 1/6th share in Schedule-A land of the plaint. She claimed 1/6th share alleging that Mungeshwar Sahoo, J. 2 Sitaram Bishwash had three sons and three daughters namely Siv Prasad Bishwash, the defendant no.1, Jagdish Prasad Bishwash who died in 1993 leaving behind heirs defendant nos.6 to 10, Hari Prasad Bishwash who died in 1986 leaving behind heirs defendant nos.2,3,4,5,12 and 13, Sudha Devi, the plaintiff, Urmila Devi who died in 1982 leaving behind her heirs defendant nos. 14 to 16 and Kamla Devi, defendant no.17. Sitaram Bishwash died on 22.12.1974. His widow, Fulkumari Devi died much before the death of Sitaram Bishwash. All the sons of late Sitaram Bishwash separated themselves in mess and worship only in the year 1955. The suit land is still joint and the parties have got unity of title and possession. The plaintiff used to come seasonally and receive her proportionate crops. Defendant no.1 is the karta of the joint Hindu family. For last 5 years, the plaintiff is not being given her proportionate share. Some lands situate at Mauja Siyarkham comprised within khata nos.44 to 47, area 28.28 acres. Out of the joint family fund, three brothers have purchased the lands of Mauja Kohila comprised within khata no.42 measuring 16.55 acres which is also joint family property and the parties are in joint possession. Out of the joint family fund, late Hari Prasad Bishwash purchased land of khata nos.62 and 90 in Mauja Balwa which is also joint family property. In the month of December, 1996, the plaintiff was given only 30 monds of crops instead of 150 monds which compelled the plaintiff to demand for partition. The defendants refused to partition the suit property. The plaintiff further alleged that her father, Sitaram Bishwash owed Rs.20,000 to the plaintiff for last 20 3 years and in lieu of the said amount, her father had donated a small chunk of land at Nayatola, Purnea for residential purpose through a punchnama. This land is not the suit property which belongs to the plaintiff exclusively. On these grounds, the plaintiff prayed for 1/6th share in the suit property. (3) On being noticed, the defendants appeared and filed a joint written statement. Besides taking various legal pleas, their main defence is that Jashodhar Bishwash, husband of Urmila Devi and Poonam Devi, daughter of late Hari Prasad Bishwash have not been made party in the suit and, therefore, the suit is bad for defect of parties. They admitted that because of dispute in the family, Hari Prasad Bishwash and Jagdish Prasad Bishwash separated from their father in April, 1955 in mess only. The three brothers had got their separate earning and income out of their separate milk business and earning from other paddy, jute and crop business. Out of their personal fund and earning, the three brothers acquired some of the suit lands in their own names which are detailed in Schedule of the written statement. Sitaram Bishwash gifted his property to the three brothers. Therefore, the plaintiff has got no right, title and possession over the properties which were acquired by the three brothers out of their own income and over the lands of Sitaram Bishwash which was gifted by the gift deeds to his sons separately. The defendants denied that out of joint family fund, the land of Mauja Kohila measuring 16 acre 55 decimals was purchased. They also denied that out of joint family fund, the land of Mauja Balwa was purchased. They also denied to have 4 given 30 monds of paddy to the plaintiff in December, 1996. Their case is that the plaintiff has got no interest in the suit property and she has no right to demand partition. The share demanded by the plaintiff is wrong. They also denied the allegation of the plaintiff that her father owed Rs.20,000 for last 20 years and in lieu of that, he donated small chunk of land at Nayatola, Line Bazar, Purnea. They also stated that the punchnama is forged and fabricated document. (4) Denying all the allegations made by the plaintiff, the defendants have given full facts regarding acquisition of the suit lands mentioned in detail in Schedule-A of the plaint. According to the defendants, Schedule-I of the written statement was acquired by Siv Prasad Bishwash through registered deed of gift executed by the father of Sitaram Bishwash on 05.09.1962. Since the date of gift, Siv Prasad Bishwash came in exclusive possession over the gifted land and he i.e. defendant no.1 sold 22 decimals of plot no.268, Mauja Kohila to Dharam Chand Mandal and put him to possession. The said vendee has not been made party in the suit and, therefore, the suit cannot proceed. The plaintiff and defendant nos.2 to 17 have got no interest or possession over the gifted land mentioned in Schedule-I of the written statement. The defendant no.1 is the exclusive owner and is in possession thereof. (5) Schedule-II of the written statement were the lands acquired by defendant no.1 out of his personal income and fund and he has also been mutated with respect to the said land and out of the said land, he has sold some of the lands to Yogendra Bishwash and he is 5 coming in possession of the purchased land. The said purchaser is necessary party but he has not been made party. (6) Schedule-III of the written statement are the self-acquired land of Hari Prasad Bishwash out of his own income and fund and out of the said land, he has also sold some land to Hiralal Bishwash on 31.03.1975 and since after purchase, the vendee is in possession thereof. He has also sold land by registered sale deed dated 17.06.1974 to Godai Bishwash out of the said self-acquired property detailed in Schedule-III. He also sold 24 decimals on 17.06.1974 again to Godai Bishwash and put him in possession. The remaining land is coming in possession of Hari Prasad Bishwash and after his death, the defendant nos.2 to 5 are coming in possession as exclusive owner. (7) Schedule-IV land of the written statement was acquired by Hari Prasad Bishwash by virtue of a registered gift deed executed by Sitaram Bishwash, his father on 05.09.1962 and out of the said land, he has also sold some lands to Sri Chhutahru Mahto and Sunder Mahto on 17.03.1990 and to Anil Yadav and others on 11.05.1992. He has also sold land on 17.03.1990 to Satyanarain Bishwash, on 28.11.1974 to Domai Bishwash and the remaining lands are coming in possession of the defendant nos.2 to 5. The others have got no interest in the said property. The purchasers are not made party in the suit. (8) Schedule-V lands of written statement was acquired by late Hari Prasad Bishwash out of his own income and fund and the lands mentioned in detail in lot nos.1 to 4 of Schedule-VI were jointly 6 acquired by defendant no.1, Siv Prasad Bishwash and Jagdish Prasad Bishwash ancestors of defendant nos.6 to 10 in equal share from their personal fund through 4 registered sale deeds dated 09.12.1967 and 28.02.1968 from Rabi Bishwash and others. After purchase, they were in exclusive possession thereof and they also sold jointly to Yogendra Prasad Bishwash some of the said acquired land. They also sold some land to Saheblal Mahto on 21.12.1995. The vendees are in possession of the purchased lands but they have not been made party in the suit. They have also sold lot no.2 of the Schedule-VI of the written statement by registered sale deeds dated 23.06.1997 to Bind Lal Mahaldar. They have also sold some land of lot no.2 of Schedule-VI of written statement on 09.12.1967. The others have got no title, interest and possession over the said lands. (9) The further defence is that out of the said Schedule-VI of the written statement land, the defendant no.1 and defendant nos.5 to 10 have sold to other persons also on 22.12.1990 to Mohan Mahaldar, 10.12.1996 to Manik Chand Mahto. Therefore, the plaintiff has got no title, interest and possession over the Schedule-VI lands. The remaining lands are in possession of the acquired persons. (10) So far Schedule-VII of the written statement is concerned, the case is that the said land has been acquired by Jagdish Prasad Bishwash through registered gift executed by Sitaram Bishwash on 05.09.1962. After gift, Jagdish Prasad Bishwash also sold some of the gifted land by registered sale deeds dated 23.11.1990 to Manoj Thakur and by registered sale deed dated 17.03.1990 and 10.06.1992 to Bind 7 Lal Bishwash and others. So far the land of Schedule-VII of written statement is concerned, the others have got no right, title, interest and possession. All the vendees have not been made party by the plaintiff. (11) The further defence is that the lands described in Schedule-VIII to XII of the written statement belong to Ramcharan Bishwash father of Sitaram Bishwash which he had acquired and remained in possession till death. Likewise, the lands mentioned in detail in Schedule- XIII and XIV was also the land of Ramcharan Bishwash who had purchased it in the name of Fulkumari Devi wife of Sitaram Bishwash. The lands of Schedule-VIII to XIV of the written statement are concerned, according to the defendants, the said lands were amicably partitioned between the three brothers and the three sisters. The three daughters of Sitaram Bishwash orally relinquished their right, title and interest in lieu of cash and ornaments. The lands mentioned in detail in Schedule-VIII to XIV are the ancestral lands. Siv Prasad Bishwash, Jagdish Prasad Bishwash and Hari Prasad Bishwash had sold 79 decimals by registered sale deed dated 17.03.1990 to Mohan Malakar but he has not been made party. Therefore, the defendants admitted that the lands mentioned in Schedule-VIII to XIV are the ancestral land of Sitaram Bishwash but in the amicable oral partition, the three daughters of Sitaram Bishwash including the plaintiff relinquished their right, title and possession in favour of three sons of Sitaram Bishwash. The defendants in the written statement have pointed out various defects in the area, plot number and khata number. 8 (12) In view of the above pleadings of the parties, the learned Court below framed the following issues: I. Has the plaintiff got any cause of action for the suit? II. Is the suit framed as maintainable? III. Is the suit barred by law of limitation? IV. Is the suit barred by adverse possession? V. Is the property valued and the court fee paid there on sufficient? VI. Is there any unity of title and possession between the plaintiff and defendants with regard to the suit land? VII. Is the plaintiff entitled to 1/6 share over the suit land described in schedule-A of the plaint and movable described in schedule-B? VIII. To what other relief or reliefs if any is the plaintiff entitled to? (13) After trial, the learned Court below came to the conclusion that the suit land has already been gifted by Sitaram Bishwash to his three sons and their father has not left any dhurs of land so the plaintiff cannot claim partition of 1/6th share. The three sons were separate from their father since 1955 and thereafter, they started their separate business and acquired the properties. The plaintiff is not entitled to claim share in that property and dismissed the plaintiff’s suit. (14) The learned counsel for the appellant submitted that there are overwhelming evidences available on record which proves that the properties were acquired by the three sons out of the income from joint family property and, therefore, the properties acquired are joint family property but the learned Court below has wrongly held that those properties are self-acquired property of the three sons out of their 9 separate earning from business. The learned counsel further submitted that the gift deeds were never acted upon and moreover, even if, the finding of the learned Court below to the effect that some of the properties are self-acquired property of the defendants and some of the properties have been acquired through gift deed of the year 1962 executed by Sitaram Bishwash then also, the plaintiff is entitled for her 1/6th share in the ancestral property but the learned Court below has not at all decided this question as to whether the plaintiff is entitled for her 1/6th share in the ancestral property or not. All the properties are standing in the name of Sitaram Bishwash and Fulkumari Devi and, therefore, the plaintiff is entitled for 1/6th share. Admittedly, the properties described in Schedule-VIII to XIV in the written statement are ancestral property according to the defendants-respondents themselves but the learned court below has not decreed the suit with respect to those properties also on the ground that there had been amicable family settlement without there being any evidence. The plaintiff never relinquished her interest in the property. The admissions and/or relinquishment if any, made by the other two sisters of the plaintiff will not bind the plaintiff. On these grounds, the learned counsel for the appellant submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s suit for partition be decreed to the extent of 1/6th share. (15) On the other hand, Mr. Sidheshwari Prasad Singh, the learned senior counsel appearing on behalf of the respondent submitted that the simple suit for partition is not maintainable. There had already 10 been oral family settlement and the parties are coming in possession of the properties according to the settlement and the defendants have also sold many of the properties to different persons and those purchasers have not been made party to the suit and, therefore, the simple suit for partition in absence of the purchasers is not maintainable. The learned counsel further submitted that the plaintiff has filed the suit clubbing all the properties which belong exclusively to the defendants which they either acquired through gift deed of the year 1962 or acquired out of their own income from business and, therefore, suit suffers from multifariousness of causes of action. The learned counsel further submitted that the sale deeds have been executed by the defendants more than three years prior to institution of the suit and no prayer for setting aside the sale deeds have been made nor ad valorem Court fee have been paid by the plaintiff and, therefore, the suit for partition was not maintainable. The learned counsel further submitted that so far ancestral property is concerned, in view of Section 6 of the Hindu Succession Act, the plaintiff will have only 1/24th share as the plaintiff being the daughter will be entitled to inherit from the property of her father, Sitaram Bishwash only. Sitaram Bishwash died in the year 1974 and, therefore, on his death there shall be a notional partition to find out the share of Sitaram Bishwash. In that partition, the three sons will get 1/4th each and Sitaram Bishwash will also get 1/4th share. This 1/4th share of Sitaram Bishwash will devolved on his three sons and three daughters equally i.e. 1/6th of 1/4th = 1/24th share will go to the three sons and three daughters. Accordingly, the plaintiff is entitled to only 11 1/24th share if it is held that the partition suit is maintainable and not 1/6th share. The learned counsel further submitted that the plaintiff has intentionally not included the property given by Sitaram Bishwash to her for residential purpose. The learned counsel further submitted that the learned Court below has dealt with in great details with respect to all the evidences and has rightly came to the conclusion that the plaintiff is not entitled to any share in the suit property and, therefore, has rightly dismissed the plaintiff’s suit. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. (16) In view of the above rival contentions of the parties, the points arise for consideration in this appeal is: I. Whether the plaintiff has been able to prove unity of title and possession over the suit property with the defendants? II. Whether the plaintiff is entitled to 1/6th share or 1/24th share in the suit property and whether the impugned judgment and decree are sustainable in the eye of law? (17) Both the points are interconnected and, therefore, both the points are decided together. From perusal of the pleadings of the parties, it appears that the parties have admitted the fact of separation of three sons of Sitaram Bishwash from their father in the year 1955. The plaintiff further pleaded at paragraph 10 of the plaint that the three brothers purchased land of Mauja Kohila measuring 16.55 acres out of the joint family fund and likewise, late Hari Prasad Bishwash had purchased the land of Mauja Balwa out of joint family fund. Those 12 properties are also joint property and the parties are in joint possession thereof which have also been included in Schedule-A of the plaint. In the written statement, it has been specifically pleaded that after separation in the month of 1955, the three brothers of the plaintiff were doing their separate business and out of their own income, they purchased jointly in their names and also separately in individual names. In the written statement, the defendants have given 14 Schedules. It has been specifically pleaded that Schedule-I, IV and VII of the written statement are the properties acquired by the three brothers through the gift deed executed by Sitaram Bishwash on 05.09.1962 in favour of the three sons separately vide paragraph 27,33 and 47 of the written statement. Likewise, in the written statement, it has been pleaded that the properties mentioned in detail in Schedule-II, III, V and VI of the written statement have been acquired by the three brothers out of their own personal income vide paragraph 28,30,38 and 39 of the written statement. It has further been pleaded specifically that out of the said properties acquired through gift and acquired out of their personal income i.e. self-acquired properties mentioned in detail in Schedule-I to VII of the written statement, the defendants have transferred many of the properties to different purchasers right from the year 1974 to 1997-98. Likewise, in the written statement according to the defendants, the properties mentioned in detail in Schedule-VIII to XIV are the ancestral property acquired by Ramcharan Bishwash but the said property was orally partitioned between the three brothers after the death of their father and the three daughters relinquished their 13 interest in the said property in favour of the brothers vide paragraph 48 and 50 of the written statement. (18) In view of the above pleading, it appears that according to the plaintiff, total Schedule-A of the plaint property is the joint family property whereas the defendants divided Schedule-A of the plaint into three categories. The first category is that out of the property mentioned in Schedule-A of the plaint, the properties which are gifted by Sitaram Bishwash to three sons have been detailed in Schedule-I, IV and VII. Likewise, the self-acquired properties have been detailed in Schedule-II, III, V and VI of the written statement. The other Schedules i.e. Schedule VIII to XIV of the written statement are admitted to be the ancestral property. (19) Now, let us examine the evidences by the parties with respect to their respective claims. As stated above, it is admitted case that the three brothers were separate in mess in the year 1955. The defendants have produced sale deeds Exhibit-E/9, E/13 and E/15 which are of the year 1959, 1967 and 1968 in the name of the brothers by which the properties mentioned in Schedule III to VI of the written statements were acquired by the three brothers. P.W.7 is the plaintiff herself who has been examined on commission on 25.07.1999. She has stated that when father was alive, all the brothers and sisters were joint and the landed properties were also joint. There are 500 to 600 Bighas of land in the joint family. She has denied that the brothers have given any money or ornaments and that the sisters have relinquished their interest in favour of the brothers. She has also denied about self- 14 acquisition by the brothers. However, in the cross-examination, she has stated that she cannot say how the lands have been acquired. She is also unable to say about the acquisition of the suit land. On the contrary, D.W.15,16 and 24 examined on behalf of the defendants have stated that the properties have been purchased by the defendants i.e. three sons of Sitaram Bishwash after separation out of their income from separate business. D.W.1, Sheela Devi wife of Hari Prasad who was also examined on commission has stated that the three sons of Sitaram Bishwash were separate during the life time of their father. The father executed gift deeds in favour of the three sons with respect to his entire lands. The sons of Sitaram Bishwash had separate business and separate income and out of that separate income, they purchased the land in their names. Likewise, the defendant witness, Pramila Devi who was also examined on commission has stated the same thing about acquisition through gift deed and acquisition of the properties out of income from separate business. D.W.18,23,25 and 34 are on the point of separate purchase of land out of personal income by the three sons of Sitaram Bishwash. D.W.9 and 12 have stated that Sitaram Bishwash had executed gift deeds in favour of his three sons. The three sons had separate income from their separate business and they purchased the lands out of their separate income in their names. Likewise, the D.W. 27,29,31,37,40 and 41 have also stated the same thing. (20) In view of the above fact, the pleading of the plaintiff to the effect that the defendants have acquired some property as stated above in their own names out of the joint family fund is not supported 15 by any evidence either oral or documentary. Except this pleading, there is nothing on record to come to the conclusion that the properties were acquired out of the joint family fund. When it is a case of the parties that the three sons of Sitaram Bishwash separated themselves from their father and they started living separately then there was no question of joint family fund arises. Moreover, we have seen the evidence of the plaintiff herself who is unable to say that how the suit properties have been acquired. (21) Further, according to the defendants, the properties which were gifted by Sitaram Bishwash to the three sons in the year 1962 and the properties which they acquired out of their own income have been sold by them to different persons right from 1974 onwards and they put the purchasers in possession thereof. The defendants have produced Exhibit-E, E/1 to E/8, E/16 to E/21 which are registered sale deeds executed by Siv Prasad Bishwash, Hari Prasad Bishwash, Sheela Devi wife of Hari Prasad Bishwash and Pramila Devi wife of Jagdish Prasad Bishwash out of khata no.42,53 and 56 Mauja Kohila and khata no.62 of Mauja Balwa. From these registered sale deeds,