FIRST APPEAL No.402 OF 1980 Against the judgment dated 26.2.1980 and the decree following thereupon signed on 12.03.1980 by Sri Ram Prit Pathak, 6th Additional Subordinate Judge, Chapra in Partition Suit No. 23 of 1963/ 47 of 1979. DEVENDRA KUMAR GUPTA & OTHERS ………… Defendant Nos.1 to 3/Appellants Versus KAUSHILYA DEVI & OTHERS .……….. Plaintiffs-Respondents ******** For the appellants : Mr. S.K. Verma, Sr. Advocate Mr. Anish Chandra Sinha, Advocate Mr. Jitendra Kishore Verma, Advocate For the respondent Nos.39 to 50 : Mr. Kamal Nayan Chaubey, Sr. Advocate Mr. Vibhakar Tiwari, Advocate Mr. Siddharth Harsh, Advocate For the respondent No. 2 : Mr. Shiv Kr. Dwivedi, Advocate Dated : 1st day of December, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The contesting defendants have filed this first appeal against the judgment dated 26.2.1980 and the decree signed on 12.3.1980 by Sri Ram Prit Pathak, the learned 6th Additional Subordinate Judge, Chapra in Partition Suit No. 23 of 1963/ 47 of 1979 decreeing the plaintiffs-respondents’ suit for partition. 2. The original plaintiff Ram Dayal Sah filed the aforesaid Partition Suit No. 23 of 1967 claiming 1/6th share with respect to Schedule 1 property and 1/12th share with respect to the properties mentioned in Schedule 2 and 3 of the plaint. Mungeshwar Sahoo, J. -2- 3. The plaintiffs claimed aforesaid relief alleging that their common ancestor was one Sheo Narayan Sah who had three sons namely Imrit Sah, Janaki Sah and Ram Narayan Sah. Imrit Sah had three sons namely Ram Gobind Sah, Ram Ayodhya Sah and Thakur Sah. Thakur Sah died issueless. Ram Gobind Sah had a son, Ram Dayal Sah who is original plaintiff. On his death his legal representatives have been substituted as original respondent Nos. 1 to 7. The second son of Imrit Sah namely Ram Ayodhya Sah had two sons Kamta Prasad Sah and Bishwanath Prasad Sah who were original defendant Nos. 4 and 5. Janaki Sah had a son Ram Saran Sah who in tern had three sons Bhagwati Prasad Sah (Defendant No.1), Makeshwar Prasad Sah (Defendant No.2) and Deoki Prasad Sah (Defendant No.3). The third son Ram Narayan Sah died in 1926 leaving behind his widow Sumitra Devi and a daughter Ram Sawari Kuer. Sumitra Devi died in 1933 and Ram Sawari Kuer died in 1951 without any issue. The genealogical table is as follows :- Sheo Narayan Sah (1) Ist wife (2) 2nd wife Imrit Sah Janaki Sah Ram Narayan Sah (D-1926) Ramgovind Sah Ram Ayodhya Sah Thakur Sah Ram Sharan Sah Sumitra Devi (Wife) (Died Issuless) (D-1933) Ram Dayal Sah Kamta Bishwanath Bhagwati Makeshwar Deoki Ram Sawari Kuer (Plaintiff in Pd. Sah Pd. Sah Pd. Sah Pd. Sah Pd. Sah (D-1951) T.S.23/63) (Def. 4) (Def. 5) (Def. 1) (Def. 2) (Def.3) (Plaintiff in T.S. 24/41) (R. 1 to 7) (R. 9) (R. 10) (A-1) (A-7) (Earlier Suit) (Heirs of P) Gopaljee Sah Mohanjee Sah Ram Babu Sah Parwati Devi (Wife) And 3 daughters (A-2 to 6) Kedar Nath Banshi Pd. Kanhaiya Pd. Satrughan Pd. Vijay Kumar Dhrub Pd. Brijanandan Lallan Pd. Gupta Gupta Gupta Gupta Gupta Gupta Gupta Gupta (Substituted Heirs of A-1) -3- 4. The further case of the plaintiffs is that the three sons of Sheo Narayan Sah affected partition. Ram Narayan Sah acquired several properties separately and also with defendant Nos. 1 to 3 and their father Ram Saran Sah. He was in separate possession of the property acquired by him separately and was in joint possession of the properties acquired jointly with Ram Saran Sah and defendant Nos. 1 to 3 as tenant in common. Ram Saran and Ram Narayan started a partnership business of cloths in the name of “Ram Narayan Sah Ram Saran Sah”. In that business both of them had half and half share. With the help of the income from that property, several other properties were acquired. The properties acquired out of the income of that cloth business have been described in Schedule 2 and 3 of the plaint. After the death of Ram Narayan Sah his widow Sumitra Devi came in possession over the properties. After death of Sumitra Devi her only daughter Ram Sawari Kuer came in possession of the said properties and she died issueless in 1951. On her death in 1951 the plaintiff and the defendants Nos. 1 to 4 being the heirs of Ram Narayan Sah came in possession over the properties of Ram Narayan Sah by inheritance. The ancestral properties and self acquired properties of Ram Narayan Sah have been given in Schedule 1 of the plaint whereas the properties in which Ram Narayan Sah was tenant in common with defendant Nos. 1 to 3 has been mentioned in detail in Schedule 2 of the plaint. The defendant No.6 is the purchaser from the plaintiffs out of the plaintiffs’ share and defendant Nos. 7 to 14 are the purchaser from defendant Nos. 1 to 3 who are also in joint possession, therefore they have also been made defendants in the suit. 5. The defendant Nos. 1 to 3 appeared and filed a contesting written statement. The defendant No.6 appeared and prayed for his transposition as plaintiffs and then he was transposed as plaintiff No.2. -4- The defendant Nos. 4 and 5 filed their written statement supporting the plaintiffs’ case. The transferee-defendant from the defendants filed written statement supporting the defendant Nos. 1 to 3. 6. According to the contesting defendant Nos. 1 to 3 who are the appellants in this first appeal, the suit is not maintainable in its present form. The suit is barred by limitation and estoppel and also on the principle of res judicata. Their further defence is that Imrit Sah was the son of the first wife of Sheo Narayan Sah. Janaki Sah and Ram Narayan Sah were the sons of second wife of Sheo Narayan Sah. Since there was dispute between the second wife of Sheo Narayan and wife of Imrit Sah, he (Imrit Sah) separated from his father and brothers. At that time Ram Saran Sah was minor. During this separation Janaki Sah died. Imrit Sah took his share out of the joint family properties. Sheo Narayan Sah for self and as guardian of Ram Saran Sah and Ram Narayan Sah lived together which amounted to an agreement of re- union. After death of Sheo Narayan Sah, Ram Narayan Sah become the Karta of the re-united family. Whatever properties were acquired by Ram Narayan Sah were the joint family properties although stands in the name of family members and both the branch of Ram Narayan and Ram Saran were in joint possession of the properties. 7. The cloth business is joint family properties and not partnership firm business. Out of the properties mentioned in Schedule 1 of the plaint some properties were acquired by the defendant Nos. 1 to 3 and their father, out of their own funds and the said properties have been mentioned in Schedule A to the written statement. The remaining properties of Schedule 1 were joint family properties of Ram Narayan Sah and Ram Saran Sah. Out of Schedule 2 properties the father of defendant Nos. 1 to 3 and defendant Nos. 1 to 3 acquired properties out of their personal funds which have been mentioned in -5- Schedule B to the written statement. The properties as mentioned in Schedule 3 are non-existence and are imaginary. 8. The further case of the defendants-appellants is that neither Sumitra Devi nor Ram Sawari Kuer ever came in possession of the properties after the death of Ram Narayan Sah. After the death of Ram Narayan Sah the suit properties came in possession of defendant Nos. 1 to 3 to the exclusion of Ram Sawari Kuer, Sumitra Devi and the plaintiffs and defendants No. 4 and 5. These defendants have acquired title by adverse possession and ouster on the properties of Ram Narayan Sah. These defendants further alleged that the father of defendant Nos. 4 and 5 had filed a partition suit being Partition Suit No. 29 of 1927 for self and on behalf of defendant Nos. 4 and 5 against Ram Saran Sah and these defendants claiming half share in the properties of Ram Narayan Sah which was compromised in which the father of defendant Nos. 4 and 5 accepted that Ram Saran died in state of jointness with these defendants. The said compromise decree will operate as res judicata and estoppel against the plaintiffs and the defendant Nos. 4 and 5. 9. The Further case of the defendant Nos. 1 to 3 is that in the year 1941 the daughter of Ram Narayan Sah namely Ram Sawari Kuer had filed Title Suit No. 24 of 1941 for declaration of her title and recovery of possession over properties of Ram Narayan Sah on allegation that Ram Narayan Sah died in state of separation from the branch of his brothers. The suit being Title Suit No. 24 of 1941 was filed against these defendant Nos. 1 to 3 and the plaintiffs and defendant Nos. 4 and 5. Ram Saran Sah and these defendants contested the said suit on two grounds firstly that Ram Narayan Sah died in state of jointness with them and on his death the properties devolved upon them on the principle of survivorship and secondly that they are coming in possession over the entire properties of Ram -6- Narayan Sah adversely and have acquired title by adverse possession. Originally the suit filed by Ram Sawari Kuer being Title Suit No.24 of 1941 was dismissed by the trial court. Thereafter Ram Sawari filed First Appeal No. 60 of 1944 before this High Court which was allowed and thereafter these defendants filed appeal before the Hon’ble Supreme Court and the judgment of the High Court was set aside and the first appeal was remanded to the High Court. After remand the said first appeal No. 60 of 1944 abated as such was dismissed. Therefore, the judgment and decree of the learned court below became final which will operate as res judicata in the present case as the plaintiffs and father of the defendant Nos. 4 and 5 were party in the said title suit No. 24 of 1941. 10. The further case of these defendants is that they have spent huge amount i.e. Rs. 25,342.6 anna in defending their right against Kanhaiya, who claimed as the adopted son of Ram Sawari Kuer and prayed for satisfaction on the death of Ram Sawari Kuer. They also deposited Rs. 1,70,549/- for satisfaction of decree in Title Suit No. 11 of 1951 filed by Bhagwati Prasad for specific performance of contract alleged to have been executed by Ram Saran Sah for selling the lands of Ram Narayan Sah. They have also spent Rs. 20,225/- in the litigation. They also spent Rs. 6311.6 anna in safeguarding the suit property. They spent Rs.50,000/- after death of Ram Narayan Sah on reconstruction of the house of Mohalla Telpa and have spent Rs.50,000/- in the house of Mohalla Sahelganj and Rs.80,000/- was spent in construction of a house. In the event, if the suit is decreed, the plaintiffs have to pay the proportionate cost of the amount invested by the contesting defendants. 11. On the basis of the above pleadings the learned trial court framed the following issues. -7- “1. Is the suit as framed maintainable ? 2. Have the plaintiffs got any cause of action for the suit ? 3. Is the suit barred by limitation, adverse possession and ouster ? 4. Is the suit hit by section 34 of the specific relief act ? 5. Is the suit barred by estoppel and res judicata ? 6. Whether the three sons of Sheo Narayan Sah separated from each other and Ram Sharan Sah and Ram Narayan Sah reunited ? 7. Whether the firm “Ram Narayan Sah Ram Sharan Sah” was the partnership firm or it was a joint family business ? 8. Whether Imrit Sah was full brother of Janaki Sah and Ram Narayan Sah ? 9. Have the plaintiffs unity of title and unity of possession in respect of suit properties and are they entitled to a decree for partition, if so in which properties and to what extent ? 10. Whether the defendant No. 1 to 3 spent the amount in protecting the suit properties ? if so what was the amount and to what extent they are entitled to proportionate contribution from the plaintiffs and defendant No. 4 and 5. 11. To what relief if any the plaintiffs are entitled ?” 12. After trial the learned trial court while deciding the issue Nos. 5 and 6 held that the suit is not barred either by the principle of res judicata or by estoppel and also held that sons of Sheo Narayan Sah had in fact separated from one-another and Ram Saran Sah and Ram Narayan Sah never reunited as alleged by the contesting respondent Nos. 1 to 3. While deciding issue No.8 the learned court below found that Imrit Sah was full brother of Janki Sah and Ram Narain Sah. While deciding issue No.7 the learned court below found that the firm “Ram Narayan Sah Ram Saran Sah” was not a partnership business rather it was a joint business of Ram Narayan -8- Sah and Ram Saran Sah in which both of them were tenant in common. While deciding issue No.3 the learned court below found that the suit is neither barred by law of limitation nor by the adverse possession and ouster. While deciding issue No.10 the learned court below found that the defendants have miserably failed to prove that they had incurred any expenditure as given in their written statement. While deciding issue Nos. 1, 2, 4, 9 and 11 jointly the learned court below came to the conclusion that the plaintiffs and defendant Nos. 4 and 5 who belong to branch of Imrit Sah are also co-sharer in respect of the property of Ram Narayan Sah along with defendant Nos.1, 2, 3 who are in possession over the property of Ram Narayan Sah and, therefore, the plaintiffs and defendant Nos. 4 and 5 have got unity of title with defendant Nos. 1 to 3 who are in possession over the property of Ram Narayan Sah. The learned court below also observed that it is settled principles of law that possession of one co-sharer is possession of other, therefore, it has got to be held that there is unity of possession also between the plaintiffs and defendant Nos. 4 and 5 on the one hand and defendant Nos. 1 to 3 on the other hand in respect of the properties of Ram Narayan Sah. 13. It appears that on 19.11.1979 a petition was filed by defendant Nos. 1 to 3 for abatement of the suit relating to Khata No. 10, 12, 95 and 188 on the ground that consolidation proceeding has started. Accordingly, the learned court below held that the suit abated in part in respect of the lands pertaining to Khata No. 10, 12, 95 and 188 as the others did not dispute the fact of the issuance of notification under Section 3(a) of the Bihar Consolidation of Holdings Act. So far the rest of the properties the plaintiffs’ suit was decreed except Schedule 3. The learned court below found that there is no material evidence with regard to Schedule 3 properties. -9- 14. Mr. S.K. Varma, learned Senior counsel appearing on behalf of the appellants submitted that the learned court below has miserably failed to appreciate question of law raised by the appellants and held that the suit is maintainable in its present form and it is not barred by principle of res judicata and wrongly decreed the plaintiffs’ suit. The learned counsel further submitted that although there are oral and documentary evidence regarding adverse possession and ouster, the learned court below at paragraph 46 of the impugned judgment without discussing regarding adverse possession observed that the plaintiffs are co-sharer of defendant Nos. 1, 2 and 3 in respect of the properties of Ram Narayan Sah therefore, the plea of adverse possession is not applicable and so far plea of ouster is concerned the defendants have not adduced any evidence on this score which is an error of record. The learned counsel further submitted that the present original plaintiff Ram Dayal Sah was defendant No.12 in the Title Suit No. 24 of 1941 which was filed by Ram Sawari Kuer for declaration of her title and recovery of her possession. She in the plaint of that title suit admitted to have been ousted by the defendant Nos. 1 to 3 of the present suit. On her death in the year 1951 the plaintiff did not get himself substituted in First Appeal No. 60 of 1944 and did not carry on the first appeal after being transposed as appellant and therefore, the present appellants had already prescribed their title against Ram Sawari Kuer. According to the learned counsel since Ram Sawari admitted her ouster since the year 1933 vide paragraph 12 of the plaint of title suit No. 24 of 1941 Ext. 5 and on this admission she filed the said title suit for recovery of possession wherein she alleged that cause of action arose on 10th April 1933 i.e. on the death of Most. Sumitra Devi on 10th November 1940 when the last demand of possession was refused, the present suit for simple partition is not -10- maintainable but the learned court below simply held that the plaintiffs are co-sharer which is not sustainable in law. 15. Learned counsel for the appellants further submitted that the bona fide litigation by limited owner will bind the reversioner. According to the learned counsel when Ram Sawari Kuer herself had no title/lost her title because of adverse possession and ouster, there is not question of inheriting the property of Ram Narayan Sah by the plaintiff as revisioner. Moreover, in the said suit filed by Ram Sawari the present plaintiff who was defendant No.12 could have prayed for being substituted in place of Ram Sawari and/or could have prayed for being transposed as appellant in First Appeal No. 60 of 1944 but he allowed to abate the said first appeal and, therefore, the adverse possession of the appellants i.e. the defendant Nos. 1 to 3 which had already started in 1933 (admitted in paragraph 12 of Ext. 5) did not break which was completed in the year 1945 and if the pendency of the earlier suit will stop the limitation then also on the death of Ram Sawari in 1951, 12 years will be completed in the year 1953. The learned court below has not at all considered these aspects of the matter and wrongly held that the plaintiffs are co-sharer. Since the limited owner i.e. Ram Sawari fought the earlier case up to the Hon’ble Supreme Court bona fidely and in absence of facts showing her latches or collusion the decision of that suit will be binding on the reversioner i.e. the present plaintiff and therefore, the suit is barred by res judicata and also adverse possession and ouster. 16. The learned counsel further submitted that in the earlier suit the trial court dismissed the plaintiffs’ suit holding that Ram Sawari Kuer had no title and did not grant the decree for recovery of possession. The First Appeal No.60 of 1944 filed by Ram Sawari Kuer before the High Court was abated and, therefore, the judgment of the trial court became final. In such view of the matter also the finding on -11- issue No.7 in the earlier suit will operate as res judicate. According to the learned counsel the effect of abatement is to wipe out everything done in the appeal and put back the parties in the same position existing at the time of filing of the appeal. In other words, every judgment and order passed after filing the first appeal also be wiped out. Learned counsel further submitted that the appellants being the defendants in the court below are at liberty to take inconsistent plea of defence. They were claiming title in the earlier suit on two counts, firstly on the ground of survivorship and secondly i.e. alternatively that they have acquired title by adverse possession. Even if there was finding of the Hon’ble High Court regarding the separation between Ram Saran Sah and Ram Nararayan Sah, the plea of the present defendants-appellants regarding ouster and adverse possession should have been decided by the court below but the learned court below has only observed that plaintiff is co-sharer as such adverse possession is not applicable and there is no evidence of ouster although Ram Sawari herself admitted ouster and these defendants-appellants in their written statement Ext. 6 in paragraph 16 pleaded adverse possession and also there is pleading in paragraphs 18 to 22 in the present written statement and the DW 11 has supported these pleadings in his evidence. 17. The learned counsel further submitted that although the present original plaintiff was defendant No.12 in the earlier suit but in the present partition suit he did not mention a single word regarding the earlier litigation and, therefore, he is guilty of suppression of material facts. He approached the court with un-cleaned hand. According to the learned counsel he even falsely pleaded that on the death of Ram Narayan Sah, Ram Sawari Kuer came in possession of the properties which is contrary to the admission of Ram Sawari in earlier suit. He also falsely pleaded that he came in joint possession -12- with these defendants on the death of Ram Sawari but the learned court below has not at all applied his mind with regard to these facts. The learned counsel further submitted that since Ram Sawari admitted herself to be ousted by the defendants-appellants in the year 1933 itself in any case the limitation expired in 1957 and title to the property of the heirs of Ram Sawari extinguished and were stopped from recovering the possession of the property by virtue of law of limitation. In such circumstances, when Ram Sawari had no title or possession there is no question of inheritance by reversioner arises. On these submissions the learned counsel prayed that the impugned judgment and decree is liable to be set aside. 18. On the other, hand Mr. Kamal Nayan Chaubey, learned Senior counsel appearing on behalf of the respondents submitted that the learned court below has rightly decreed the plaintiffs’ suit for partition. The learned counsel further submitted that the present plaintiff being reversioner filed the present suit in 1963 i.e. within 12 years of the death of Ram Sawari therefore, the learned court below has rightly held that suit is not barred by law of limitation. The learned counsel further submitted that the defendant-appellants might have prescribed adverse possession against Hindu Widow but they are not entitled to hold the property adversely against the next reversioner i.e. the present plaintiff and therefore, the learned court below has rightly decided this question also against the present appellant. The learned counsel further submitted that so far title of Ram Sawari is concerned the trial court in the earlier suit found that the Ram Saran and Ram Narayan were joint and therefore, the properties devolved on the defendants-appellants on survivorship. On appeal the High Court reversed this finding and held that they were separate and on appeal by the defendants present appellants, the Hon’ble Supreme Court did not disturb this finding about separation of the Ram Saran Sah and -13- Ram Narayan Sah which became final. The learned counsel further submitted that the claim of defendants-appellants regarding acquisition of title by adverse possession is not sustainable because unless they give up claim of acquisition of their title by survivorship the defendants-appellants starting point for adverse possession will not start because plea of title and adverse possession are mutually inconsistent and the latter does not