FIRST APPEAL No. 281 OF 1981 Against the judgment and decree dated 26.03.1981 passed by Sri John Dhan, Subordinate Judge II, Patna in Title Suit No.41of 1978. RAM NIHORA MAHTON ………. Plaintiff-Appellant Versus RAMASHARAY MAHTON & ORS. ……… Defendants-Respondents ******** For the Plaintiff/Appellant : Mr. Arun Kumar Prasad, Advocate Mr. Kapildeo Singh, Advocate For the Defendants/Respondents : Mr. Rajendra Prasad, Sr. Advocate Mr. Pramod Kumar, Advocate Mr. Ritesh Kumar, Advocate Mr. Bimal Kumar Dutta, Advocate Dated : 4th day of March, 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 judgment and decree dated 26.03.1981 passed by Sri John Dhan, the learned Subordinate Judge 2nd, Patna in title suit no.41 of 1978 dismissing the plaintiff’s suit for partition. (2) The sole plaintiff-appellant filed the aforesaid title suit praying for partition of his half share with respect to Schedule-1 property and 1/5th share with respect to Schedule-2 property. In short, the plaintiff’s case is that Gurusahay Mahton @ Raghunandan Mahton died before cadastral survey which took place in the year 1908-09 leaving behind his son, Dukhan Mahton and widow, Masomat Bigwa and a daughter, Sonphulwa. The plaintiff is the son of Sonphulwa. The wife of Dukhan Mahton, pre-deceased him and Dukhan Mahton died soon after cadastral survey leaving behind his mother, Masomat Bigwa and sister, Sonphulwa. Mungeshwar Sahoo, J. 2 After his death, Masomat Bigwa, Sonphulwa and the plaintiff came in possession of the properties of Gurusahay Mahton. After the death of Masomat Bigwa and Sonphulwa, the plaintiff became the heir of property of Dukhan Mahton. The further case is that the defendants are the heirs of other four sons of Bal Kishun Mahton. He and the defendants are coming in joint possession of the suit property. The suit Khata No.173 stands recorded in the name of Haritahal Mahton and Dukhan Mahton and therefore, plaintiff claimed 1/2 share in that Khata which is mentioned in Schedule-1. Khata No.95 is recorded in the name of Ramtahal Mahton, Haritahal Mahton, Gurusahay Mahton, all sons of Bal Kishun Mahton and Dukhan Mahton, son of Gurusahay Mahton and Masomat Bigwa and therefore, the plaintiff claimed 1/5th share in this property which is mentioned in Schedule-2. The plaintiff demanded partition but the defendants refused. Hence, the plaintiff filed the suit for partition. (3) On being noticed, defendant nos.1 to 5 filed a joint contesting written statement. The defendant nos.14 to 17, 19, 20 and 24 filed another contesting written statement. A formal written statement was also filed by guardian ad litem on behalf of the minors. (4) According to the written statements of the defendants, they admitted that Khata No.173 was recorded in the name of Haritahal Mahton and Dukhan Mahton. They also admitted that Khata No.95 was recorded in the name of Ramtahal Mahton, Haritahal Mahton, Gurusahay Mahton, Dukhan Mahton and Masomat Bigwa. Their main defence is that Bal Kishun Mahton had six sons namely Ramtahal Mahton, Shivtahal Mahton, Haritahal Mahton, Harsahay Mahton, Gurusahay Mahton and Raghunandan Mahton. According to them, Gurusahay Mahton and Raghunandan Mahton were two 3 separate persons and not one person as alleged by the plaintiff. All the six sons had separated prior to cadastral survey. Gurusahay Mahton and his wife died much prior to cadastral survey leaving behind their son, Dukhan Mahton. Raghunandan Mahton also died before the survey leaving behind his widow, Masomat Bigwa. They were in separate possession which is shown in the record of right. Sonphulwa is not the daughter of Gurusahay Mahton or Raghunandan Mahton or Masomat Bigwa. Dukhan Mahton had no sister. According to the defendant nos.1 to 5, Sonphulwa was the daughter of Masomat Bigwa’s sister. On the death of parents of Dukhan Mahton, he being the minor re-united with Haritahal Mahton and therefore, the lands were recorded in their names jointly. He died in jointness with Haritahal soon after cadastral survey and therefore, Haritahal Mahton inherited his property by survivorship and came in possession. After his death, his son, Chamru Mahton came in possession and these defendant nos.1 to 5 are the sons of Chamru Mahton. Their grandfather, Haritahal Mahton had executed sham sale deed in favour of Harsahay Mahton, Dudheshwar Mahton and Deonarayan Mahton in respect of lands of Khata No.173. Since the transaction was sham and showy, no consideration was paid and so not acted upon. The entire land remained in possession of these defendants. Neither the vendee nor the plaintiff ever came in possession on the said land of Khata No.173. (5) The further case of the defendant nos.1 to 5 so far land of Khata No.95 is concerned, all the recorded tenants had separate possession. Masomat Bigwa had possession over 1.85 acres of land. She sold the entire lands to Haritahal Mahton, Dudheshwar Mahton and Deonarayan Mahton. The plaintiff and other defendants had no concern 4 with the land of Dukhan Mahton. They also claimed title by adverse possession. (6) According to the written statement of second set defendants, they differ with the case of the defendant nos.1 to 5 on the point that Masomat Bigwa was married to Gurusahay Mahton and they had one son named Dukhan Mahton. They had no daughter. Dukhan Mahton died in the year 1944. After death of Gurusahay Mahton, his widow, Masomat Bigwa remarried with Raghunandan Mahton severing her connection with Dukhan Mahton. The lands of Gurusahay Mahton were inherited by Dukhan Mahton which was recorded in his name. On the death of Raghunandan Mahton, his lands were recorded in the name of Masomat Bigwa. No doubt, the names of parties have been recorded in the record of right but separate possession has been shown. Masomat Bigwa sold entire land on 10.08.1939. She gifted her remaining land by gift deed dated 01.05.1941 to the plaintiff and she died in the year 1942. The plaintiff is not the maternal grandson of Masomat Bigwa. So far Khata No.173 land is concerned, it is their case that Dukhan Mahton died in the year 1944 and on his death, his property was partitioned amongst the four branches of Bal Kishun Mahton and it was never inherited by Haritahal alone. The plaintiff never came in possession of any land. The simple suit for partition is not maintainable. (7) In view of the above pleadings of the parties, the following 8 issues have been framed by the learned Court below: (i) Is the suit as framed maintainable? (ii) Has the plaintiff any cause of action for the suit? 5 (iii) Is the suit barred by limitation, estoppel, waiver and acquiescence? (iv) Is the suit barred under Section 34 of the Specific Relief Act? (v) Is the suit under valued and the Court fee paid insufficient? (vi) Is there unity of title and possession between the plaintiff and the defendants in respect of the suit land? (vii) Is the plaintiff entitled to a decree for partition if so, to what extent? (viii) To what relief or reliefs if any, is the plaintiff entitled? (8) After trial, the learned Court below found that Bal Kishun Mahton had six sons as alleged by the defendants and not five sons as alleged by the plaintiff. The learned Court below also found that after death of Gurusahay Mahton, Masomat Bigwa remarried with Raghunandan Mahton, the sixth son of Bal Kishun Mahton. The learned Court below also found that the plaintiff never came in possession of the suit property and the sale deeds executed by Masomat Bigwa are of the year 1939 and therefore, the simple suit for partition is not maintainable. On these findings, the learned Court below dismissed the plaintiff’s suit. (9) Mr. Arun Kumar Prasad, the learned counsel for the appellant submitted that the learned Court below has wrongly dismissed the plaintiff’s suit on the ground that the defendants have acquired title by adverse possession. The learned counsel further submitted that the learned Court below has not properly appreciated the evidence. According to the learned counsel, there are overwhelming evidences to show that the plaintiff is in joint possession of the property and therefore, it was not necessary for him to pray for setting aside the sale deed. On these grounds, the learned 6 counsel submitted that the impugned judgment and decree are not sustainable in the eye of law. (10) On the other hand, the learned counsel for the respondents submitted that simple suit for partition is not at all maintainable because all the properties have been sold by Masomat Bigwa in the year 1939 to these defendants and since then, they are continuing in possession and this appeal has been filed in the year 1978. (11) In view of the above contentions of the parties, the only point arises for consideration in this appeal is as to “whether the plaintiff has got unity of title and possession over the suit property” and “whether simple suit for partition is maintainable or not” and further as to “whether the impugned judgment and decree are sustainable in the eye of law?” (12) Mr. Arun Kumar Prasad, the learned counsel for the appellant submitted that the learned Court below found that the plaintiff is the son of Sonphulwa who was the daughter of Gurusahay and he inherited the property after death of Masomat Bigwa but rejected the claim of partition on the ground that the defendants have acquired title by adverse possession and that simple suit for partition is not maintainable. All the other findings are in favour of the plaintiff except that Bal Kishun Mahton had six sons. The learned counsel further submitted that once the learned Court below found that the plaintiff had the title, the decree of partition suit have been granted because possession of one co-sharer is possession of the other co-sharer. On the other hand, according to the learned counsel for the respondents, the learned Court below found that Dukhan Mahton died just after cadastral survey and mother of the plaintiff namely Sonphulwa pre deceased Bigwa and therefore, on the death of Dukhan Mahton, the suit 7 property devolved on Masomat Bigwa. On the death of Bigwa, only the plaintiff inherited the property. Prior to her death Masomat Bigwa sold her entire property to the defendants by registered sale deeds of the year 1939 and therefore, there is no question of joint possession arises. (13) It may be mentioned here that according to the parties, it is admitted fact that the six sons of Bal Kishun Mahton were separate at the time of cadastral survey which took place in the year 1908-09. Their possession has been recorded in the Khatiyan. Khata No.173 has been recorded in the name of Haritahal Mahton and Dukhan Mahton and Khata No.95 has been recorded in the name of Ramtahal Mahton, Haritahal Mahton, Harsahay Mahton and Masomat Bigwa. Exhibit-3 series are the Khatiyan in the name of Masomat Bigwa whereas Exhibit-6 series are the “Purcha”. Exhibit-3/1, Exhibit-P and Exhibit-I-I are the Khatiyans of Khata No.95. Exhibit-3/J, Exhibit-P/1 and Exhibit-I-I/1 are the Khatiyans with respect to Khata No.173. In Exhibit-3 series and Exhibit-6 series, Masomat Bigwa has been described as the wife of Gurusahay Mahton. In Exhibit-3/J, P/1 and I-I/1 which are recorded in the name of Dukhan and Haritahal Mahton, father’s name of Dukhan has been mentioned as Gurusahay Mahton. Exhibit-10, Exhibit- C-I/2, Exhibit- C-I/3 and Exhibit- C-I/4 are the sale deeds executed by Masomat Bigwa on 10.08.1939 in which husband’s name has been mentioned as Raghunandan Mahton. In none of these Exhibits, the name of her husband has been described as Gurusahay Mahton @ Raghunandan Mahton. Exhibit-2 is the deed of gift dated 01.05.1941 executed by Masomat Bigwa in favour of the plaintiff wherein the husband name has been described as Gurusahay Mahton @ Raghunandan Mahton. All these documents prove that at the time of survey, she was wife of Gurusahay Mahton and subsequently, as stated by 8 the defendants, she married Raghunandan Mahton and therefore, in subsequent documents, she has been described as wife of Raghunandan Mahton. Exhibit-3/1 shows that Masomat Bigwa is recorded along with Dukhan and others which clearly proves that Raghunandan and Gurusahay were two different persons. Had the alias of Gurusahay name was Raghunandan then, in such case, the name of Masomat Bigwa would not have been recorded along with Dukhan. These Exhibits 3/J, P/1 and I-I/1 which are in the name of Dukhan prove the fact that at the time of cadastral survey, Dukhan was alive. In view of the above discussion, I find that Bal Kishun Mahton had six sons and firstly, Bigwa was married with Gurusahay Mahton. On the death of Gurusahay Mahton, Bigwa married with Raghunandan Mahton. Both of them died prior to cadastral survey and therefore, so far land of Gurusahay is concerned, it was recorded in the name of Dukhan Mahton and so far land of Raghunandan is concerned, it was recorded in the name of Masomat Bigwa. However, they remained separate. (14) D.W.29 who is one of the defendants has stated that Dukhan died 5-6 years after the survey operation. Admittedly, Gurusahay died before survey leaving behind his son, Dukhan Mahton and widow, Bigwa. The plaintiff’s claim is that Sonphulwa is also daughter of Gurusahay. Even if plaintiff’s case is accepted that Sonphulwa was daughter of Gurusahay then also, on the death of Gurusahay, the property devolved on Dukhan, his son. From the evidence of the plaintiff himself, it appears that he was not born at the time of death of Dukhan who died 5-6 years after survey. The plaintiff in his deposition before the Court gave his age about 65 years which means that after death of Dukhan, he was born. Therefore, on the death of Dukhan, the property of Dukhan was inherited by 9 his mother Masomat Bigwa. The plaintiff only inherited the property after death of Masomat Bigwa. Masomat Bigwa died in the year 1942. So far Khata No.95 is concerned, the case of the defendants is that they have purchased the land from Masomat Bigwa as far back in the year 1939. Exhibit-F is sale deed dated 08.10.1939 executed by Masomat Bigwa to Haritahal Mahton. Exhibit-C-I/1 and C-I/3 are also sale deeds of the year 1939 executed by Masomat Bigwa in favour of Dudheshwar Mahton, son of Shivtahal Mahton and Deonarayan Mahton, son of Ramtahal Mahton. Through these sale deeds, she sold her entire share measuring 1.85 acres of Khata No.95. Therefore, on her death, she had no property in this Khata. (15) The plaintiff was knowing all these facts because subsequently, defendant nos.1 to 5 after purchase from Masomat Bigwa, mortgaged some of the suit property in favour of the plaintiff and in Exhibit- A i.e. Mortgage Deed, it is stated that the lands were purchased from Masomat Bigwa which is being mortgaged. Exhibit-A/1 and Exhibit-A/2 which are other Mortgage Deeds also show that these defendants mortgaged other suit property to Nand Kishore Singh, the son of the plaintiff. In the evidence, the plaintiff has admitted that these lands were mortgaged and he also admitted the endorsement made by him which have been marked Exhibit-B/1 and B/2. Therefore, so far the lands of Khata No.95 are concerned, Masomat Bigwa had already sold her entire share. As I have stated above, plaintiff inherited the property only after death of Bigwa. From the above discussion, it appears that when Masomat Bigwa already sold her entire property and nothing was left with her, the plaintiff did not inherit anything. Admittedly, on the death of Dukhan, the only heir was his mother, Masomat Bigwa who inherited the entire property of Dukhan and on the date of devolution, the plaintiff was not even born. 10 (16) So far Khata No.173 is concerned, the defendant nos.14 to 17, 19, 20 and 24 have stated that they have purchased the land from Haritahal Mahton. Haritahal Mahton executed the sale deed with respect to lands of Khata No.173 in favour of Harsahay Mahton, Dudheshwar Mahton and Deonarayan Mahton, the defendants. Exhibit-C-I and C-I/2 are the sale deeds. Exhibit-C-I is in favour of Dudheshwar Mahton executed by Haritahal Mahton. Exhibit-C-I/2 is in favour of Harsahay Mahton and Deonarayan Mahton. Out of 3.59 acres land by these two sale deeds, 1.38 acres was sold by Haritahal Mahton. So far other lands are concerned, Exhibit-A/4 and A/5 show that Chamru Mahton, the defendant had executed the Rehan Deeds on 29.05.1942. By Exhibit-A/4, he mortgaged 1.11 acres of land and by Exhibit-A/5, he mortgaged 1.10 acres of land and by Exhibit- A/6, he mortgaged 29 decimals of land on 03.07.1961. This Chamru Mahton is the son of Haritahal Mahton. Again in 1973, Ramashray Singh, son of Chamru Mahton mortgaged 30 decimals of land to Ram Lakhan Singh. All these documentary evidences show that the plaintiff never came in possession over the lands of Khata No.173. I, therefore, find that the plaintiff has failed to prove unity of title and possession. Some of the properties have been sold in the year 1939 by Masomat Bigwa herself and some of the properties have already been sold by the other co-sharer, Haritahal Mahton in favour of the other defendants through registered sale deeds of the year 1971. Unless the said registered sale deeds are set aside, the plaintiff will not get any share. Moreover, he knew about these facts as has been admitted by him in his evidence and also it is apparent from the documentary evidences discussed above but the plaintiff never prayed for setting aside those sale deeds for many years and for the first time, this suit for partition has been filed in the year 1978. Therefore, in my opinion, the 11 simple suit for partition is not maintainable. The finding of the learned Court below on this point is therefore, confirmed. (17) In view of my above discussion, I find that the learned Court below has rightly dismissed the plaintiff’s simple suit for partition. I therefore, find no merit in this First Appeal. (18) In the result, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 4th March, 2011 Saurabh/N.A.F.R.