Letters Patent Appeal No.1387 OF 1997 Appeal against the order dated 3.9.1997 passed by a learned single Judge of this court in F.A.No.826 of 1997. 1. Sukrit Sahani 2. Mahendra Sahani 3. Jagendra Sahani Jogi Sahani sons of Late Bhuta Sahani 4. Musan Sahani @ Munsi Sahani 5. Pradeep Sahani sons of Sukrit Sahani 6. Banarsi Devi wife of Bishwanath Sahani 7. Most.Rajiya wife of Late Sarwan Sahni, residents of Dharampur Nistama, Dist-Samastipur- Appellants. Versus 1. Fuchai Sahani alias Rajendra 2. Ram Chandra Sahani sons of Mahabvir Sahni residents of Dharmapur Nistama, P.s.District- Samastipur 3. Pyare Sahani 4. Arjun Sahnai 5. Bishundeo sahni 6. Shankar Sahni sons of late Bhikho sahni all residents of Dharampur Nistama, Dist-Samastipur 7(a).Ram Vilas Sahani s/o Pyari Sahani of village Musapur Banchar, P.O.P.S. Patepur District- Vaishali 7(b).Phulpari Devi W/o Mahendra Sahani of village Malkore P.S.P.O. Pusa, District Samastipur 7 © .Kalhiya Devi w/o Rajesh Sahni, of village Bhutta Chowk, P.O.Basudeopur, P.s.Kalyanpur, District-Samastipur 8(a).Bataha Sahni 8(b).Binod Sahani 8 © .Umesh Sahni 8(d).Dinesh Sahni of village Manwara Siropatti, P.s.Ilmasnagar,P.s.Khanpur, Dist-Samastipur 8(d).Radha Devi wife of Bhanu Sahni village Rahsauli, P.O. Sripur Gahar, P.S.Hathauri Kothi, Distt-Samastipur at present Residing at Chini Mill, Dharampur, Bandh ke kinare, P.s.Sadar, Dist-Samastipur 8(f).Ram Sakhi Devi wife of Bajrangi Sahni village Rahatauli, P.O. Hathouri, P.S. Hoyaghat, dist- Darbhanga, 8(g).Shiv Kumari Devi wife of Prakash Sahni, at & P.O. Motipur, Dist-Samastipur, all 8(f) and 8(g) at present residing in village Mantrne Siropatii, P.O. Ilmasnagar, P.S.Khanpur, Dist- Samastipur 2 9(a).Sanjhi Devi wife of Sonelal sahni 9(b).Parmial Devi wife of Ram Prasad Sahni 9 ©. Urmila Devi wife Ram Babu Sahni 9(d).Chulhiya Devi wife of Sakal Sahni 10. Mahendra sahni 11. Gonaur Sahni sons of Late Nandan Sahni 12(a)Umesh Sahni son of Late Bhola Sani resident of village Bhadogh, P.O. & p.s.Warisnagar, Dist- Samastipur 12(b)Mahesh Sahani, son of late Bhola Sahni resident of village Newala Gutt, P.O. Barok, P.S.Haria, Dist-Allahabad 12©. Dinesh Sahni son of Late Bhola Sahni resident of village Newala Gutt, P.O.Bharok, P.s.Haria, Dist-Allahabad, 13. Hirdaya Sahni 14. Bacha Sahani sons of Soney Lal Sahni 15. Janki wife of Nand Kishore Sahni and daughter of Mahabir Sahni, all resident of Mauza Dharampur Nistama, Dist-Samastipur 16. Munner wife of Late Bhikhu Sahni 17. Shanti Devi wife of Nathuni Sahni of village Hakimbad, P.O.Jitwarpur, Samastipur at present residing at Dharmpur Biskma, Dist-Samastipur 18. Manki Kumari wife of Sagar Sahni and daughter of late Bhikhu Sahni of village Saidpur, P.s.Chakmehsi, Dist-Samastipur at present residing at Ward No.8, P.O. & P.s. & Dist- Samastipur. --------Respondents. For the appellants : M/s Birendra Mohan Singh Jai Shankar Pathak Ganesh Chandra Thakur For respondent no.1,2,15: M/s S.K.Verma, Senior Advocate Jitendra Kishore Verma P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN 3 Jyoti Saran,J. 1. This appeal arises out of judgment and order dated 3.9.1997 passed in F.A.No.826 of 1977, whereby a learned Single Judge of this Court was pleased to dispose of the appeal with modification in the judgment and decree of the trial court passed in P.S.No.24/5 of 1964/1977. 2. The defendants first set, who were respondents first party before the learned Single Judge, are appellants herein, and are aggrieved by the modification of the judgment and decree of the trial court by the Learned Single Judge. 3. Whether the learned Single Judge sitting in appeal could enlarge the claim of the defendants second set, who were appellants before the learned Single Judge, is the sole issue arising in the Letters Patent Appeal. 4. We shall go by the description of the parties as it stood before the trial court. 5. The respondents first party are descendants of the plaintiffs before the trial court, namely, Bhikhu Sahni and others. The plaintiffs had instituted P.S.No.24/5 of 1964/1977, seeking decree of partition of the property described in Schedule-2,3 and 4 of the plaint to the extent of half share against defendant first party (the appellants herein). The defendant 4 second party was proforma defendants as no relief had been sought against them. 6. The case of the plaintiffs, as set out in the plaint, in brief, is that Jhakhari Sahni, the common ancestor had died leaving behind two sons, namely, Bhadai Sahni and Rama Sahni. Rama Sahni had two wives. Tejan Sahni was the son born out of his first wife, and Bhutu Sahni was born out of his second wife. The sons and grand sons of Tejan Sahni were the plaintiffs before the trial court and the son born out of the second wife, namely, Bhutu Sahni and the grand sons formed defendants first set. The descendants of Bhadai Sahni was defendant second set. Both the brothers, i.e. Bhadai Sahni and Rama Sahni, were in jointness until they separated on or about 50 years ago from the date of the judgment and decree. The lands set out in schedule 1(a) of the plaint was partitioned between them to the extent of half and half share. The lands described in schedule 2 of the plaint were allotted to the share of Rama Sahni and after his death, his son Bhutu Sahni (defendant no.1) became the karta and manager, although, Tejan Sahni was said to be elder to Bhutu Sahni and he died on 12.6.1954 while in the state of jointness. 7. It is stated that the plaintiffs and defendants 5 carried out business of stones and lime of which Bhutu Sahni was the manager, and the plaintiffs and other members looked after the cultivation, the income from which and from other business used to be in the custody and possession of Bhutu Sahni. It is stated that out of those income, Bhutu Sahni (defendant no.1) acquired immovable property, which forms Schedule 3 to the plaint. According to the further case of the plaintiffs, Tejan Sahni, the father of plaintiff no.1, was a simpleton and taking advantage of his simplicity, Bhutu Sahni practised fraud and got an inoperative Bharna deed executed on 5.9.1925, which was a farzi deed. The Bharna land remained in possession of the father of plaintiff no.1 and as the defendant first set (Bhutu Sahni and his descendants), did not respond to the demand of partition. Hence the suit in question. 8. Two sets of written statements were filed before the learned trial court, one on behalf of defendant first set and the another by defendant no.16 and the parties contested the suit. 9. The defendant first set, who were the main contestant before the trial court, besides raising technical objections, categorically stated in their written statements that after the death of Rama Sahni, Mostt.Ganauri (mother of Tejan Sahni), on her behalf as 6 well as guardian of Tejan Sahni, partitioned all lands from Most. Chandabati, mother and guardian of defendant no.1. The partition took place 40-50 years ago and both came in possession of their respective shares. The defendant first set denied the assertion of jointness made by the plaintiffs and also denied that defendant no.1 was the karta of the family. Jointness of cultivation and lime business was also denied. 10. It was contended by defendant first set that the property mentioned in schedule 3 and plot no.1215 was their self-acquired property, and the plaintiffs as well as defendant second set had no concern with these lands as, according to the defendant first set, the said lands had been purchased long after the partition. It was contended that on account of shortage of accommodation in the ancestral house, they left the same and constructed another house and in addition thereto, also acquired plot nos.1214 and 1215 about 12 years ago. According to the defendant first set, plot nos.1214, 1215, 1216, 1217 and 1218 are in one block and were self-acquired lands of defendant first set, after partition, over which, they have a house built and have also planted trees and bamboos. It was stated that Tejan Sahni was a prudent man and he executed a sudbharna deed in favour of defendant no.1 in lieu of 7 the loan of Rs.40/ for purchasing bullocks in the year 1955. It was stated that the said Tejan Sahni had put defendant no.1 (Bhutu Sahni) in possession of the mortgaged land and he continued to hold possession until it was redeemed by his wife Kusuma Devi after the death of Tejan Sahni. Defendant first set is said to have returned the sudbaharna deed after making endorsement of payment of the debt money. The allegation of the same being farzi was denied. 11. The case of the defendant first set was that Bhadai Sahni and Rama Sahni separated more than 60 years back and all ancestral properties were amicably partitioned between them. 12. The defendant second set stated in their written statement that plot no.1215 was ancestral land, and defendant second set were entitled to half share. About plot nos.1216 and 1218, it was contended that the said plots were recorded in the name of Bideshi Sahni who was Phoopha of Rama Sahni and Bhadai Sahni. It was stated that Bideshi Sahni died issuless and the lands came in possession of Rama Sahni and Bhadai Sahni to the extent of half and half share. Defendant second set contended that defendant no.1 (Bhutu Sahni) was a shrewd man who had fraudulently got something noted as exchange from the mother of defendant no.16. 8 13. On the basis of the contentions advanced on behalf of the parties, the trial court framed the following issues: 1. Is the suit as framed maintainable? 2. Have the plaintiffs got any cause of action or right to sue? 3. Is the suit bad for rejoinder of party? 4. Have the plaintiffs got unity of title and possession over the lands in question with the defendants? 5. And the lands of schedule no.3 and plot no.1215 the self acquired land of the defendants first party? 6. Are the plaintiffs entitled to a decree for partition? 7. To what relief or reliefs, the plaintiffs are entitled? 14. Upon consideration of the entire evidence and the arguments advanced on behalf of the parties, the trial court vide judgment and decree dated 20.6.1977, concluded that partition had taken place and thus there was no unity of possession between the parties. The learned trial court rejected the submissions of the defendant second set that plot nos.1215, 1216, and 1218 were partitioned between Bhadai Sahni and Ram Sahni and that they got half share in these plots. The trial Court held that the plot nos.1216 and 1218 belonged to Bideshi Sahni who was Phoopha of Rama Sahni and Bhadai 9 Sahni and had died issuless. The said plots never came in possession of the family of Bhadai Sahni and Rama Sahni in the manner set out by defendant no.16 and as such, neither the plaintiffs nor defendant no.16 had got any concern with plot nos.1216 and 1218. The learned trial court upon examining the evidence and taking note of the sale deed (Ext.B/8), held that the said property was purchased by defendant no.1. 15. The trial court concluded upon considering the materials and evidence on record that plot no.1215 was self-acquired property of defendant first set. In the result, the trial court dismissed the suit on contest as against defendant first party and defendant no.16, and ex parte against other defendants. 16. The defendant second set being aggrieved by the judgment and decree dated 20.6.1977, filed the appeal giving rise to F.A.No.826 of 1997 claiming half shares in plot nos.1215, 1216 and 1218. Thus the dispute between the parties was reduced to plot nos.1215, 1216 and 1218 only as is evident from the Memo of First Appeal. 17. It would further be relevant to state here that substitutions took place during the course of proceedings and have continued even at the stage of Letters Patent Appeal. 18. No appeal was preferred by the plaintiffs against 10 the judgment and decree passed by the learned trial court. In fact, appeal was preferred by defendant second set, that is, defendant nos.14,15 and 16, though only defendant no.16 contested the suit in trial court, giving rise to F.A.No.826 of 1977. The defendant second set claimed half share in plot nos.1215, 1216 and 1218. 19. A cross objection was filed on behalf of the plaintiff-respondents-first party herein, namely, Bhikhu Sahni. The appellants herein are descendants of Bhutu Sahni who were added as respondent second party. 20. The learned Single Judge vide the impugned judgment and order dated 3.9.1997 was pleased to set aside the findings of the learned trial court that plot no.1215 was the self-acquired property of defendant first set. The learned Single Judge was further pleased to hold that plot no.1215 belonged to Bhadai Sahni and/or his descendants. The learned Single Judge was further pleased to hold that the parties to the suit had no concern with plot no.1216, which belonged to Bideshi Sahni. The learned Single Judge was further pleased to hold that plot no.1218 was purchased by Bhutu Sahni, vide sale deed marked Ext.B/8. The First Appeal was disposed of with the said modifications. 21. This appeal arises as a consequence of the findings given by the learned Single Judge in paragraph no.16 of the impugned judgment holding that the plot 11 no.1215 was the self-acquired property of defendant second set and their descendants and that the plaintiffs and the defendant first set and/or their descendants had no right, title, or interest therein. 22. It would be pertinent to mention here that no appeal had been preferred by the defendant second set against the findings given by the learned Single Judge with respect to plot nos.1216 and 1218. 23. Mr. Birendra Mohan Singh, learned counsel appearing on behalf of the appellants, with particular reference to the pleadings made in paragraph no.3 and 4 of the written statement filed on behalf of defendant second set, contended that the defendant second set having claimed only half share in the plots in question, could not be granted anything in excess of the claim put forth before the trial court. It was contended that even in the appeal before the learned Single Judge, the defendant second set had only advanced their claim towards half of share in the plots in question including plot no.1215, and it was thus submitted that the findings of the learned Single Judge in granting exclusive possession of the defendant second set over plot no.1215, was a serious error and unsustainable in law. 24. It was thus contended that the learned Single Judge has made out third case not even pleaded by the 12 parties. It was contended that plot no.1215 measured 14 dhurs and at best the defendant second set could be given 7 dhurs therefrom in terms of their claim of half share in the said plot and thus, the learned Single Judge has committed an error. 25. It was argued on behalf of defendant first set that even during the pendency of the suit in question, the defendant second set had filed another title suit bearing T.S.No.1 of 1967 before the learned Munsif-II, Samastipur, for identical reliefs and the suit had been dismissed by the learned trial court vide judgment and decree dated 30.1.1996, and against which appeal bearing T.A.No.3 of 1996 was pending. The judgment and decree passed in T.S.No.1 of 1967, was brought on record of the First Appeal by the defendant first set on 27.2.1997. It was thus contended that the learned Single Judge, while passing the impugned judgment, had failed to take note of the judgment and decree passed in T.S.No.1 of 1967. It was contended that the claim on behalf of the defendant second set having been negated by the learned trial court in judgment and decree passed in T.S.No.1 of 1967, their claim was not fit to be entertained by the learned Single Judge. 26. Mr. Birendra Mohan Singh, finally submitted that the modification of the judgment and order of the learned trial court is perverse and fit to be set 13 aside. 27. Mr. S.K. Verma, Senior Advocate, appearing on behalf of defendant second set-respondent nos.1,2 and 15 herein, defended the judgment of the learned Single Judge, and contended that mere admission of facts by the concerned defendants could not confer any title upon anyone. He relied upon the judgment reported in 1993 (1) PLJR 172 with reference to paragraph no.44 (Zeyarat @ Zeyarat Hussain and another Vs. Kamsmali Mian and others). Paragraph no.44 of the judgment is set out herein: “44.- A title can not pass by mere admission. See Ambika Prasad vs.Ram Eqbal reported in AIR 1966 SC 605 at page-612. Thus, if title cannot be derived by admission which is one of the foundations for a plea of estoppel, mere inaction of one cannot create a title for another unless the same is obtained by prescription. No such case has been made out by the plaintiff in the instant case.” 28. Confronted with the reasons for filing the First Appeal No.826 of 1977, even while he had already filed T.S.No.1 of 1967 in the court of the learned Munsif-II, Samastipur, for same set of relief, Mr. Verma defended that the necessity of filing the First Appeal No.826 of 1977, arose by reasons of the adverse findings given by the trial court as against the defendant second set in relation to plot nos.1215, 1216 and 1218. In support of his submission, Mr. Verma relied upon the judgment 14 reported in AIR 1974 Patna-1 (F.B) in the case of Arjun Singh and others vs. Tara Das Ghosh and others. 29. It was further contended that the opinion expressed by the conduct of a person as a member of the family is also a relevant factor for consideration of his claim and the learned Single Judge had committed no error while recording his findings in paragraph no.16 of the impugned judgment with regard to plot no.1215. In support of his submission, Mr. Verma has relied upon a judgment in the case of Bishwanath Gosain Vs. Dulhin Lalmuni and others reported in AIR 1968-Patna-481. 30. It was contended that as the judgment of the trial court in the present proceeding was an earlier judgment against which the F.A.No.826 of 1977 was pending, hence, the finding in T.S.No.1 of 1967 would not operate as resjudicata to the present proceedings in terms of Section 11 of the Code of Civil Procedure in the present proceeding. 31. Mr. Verma concluded his argument with the submission that the conclusion drawn by the learned Single Judge upon consideration of the entire materials available on the record and the rival contentions of the parties, did not warrant any interference in Letters Patent Appeal. 32. Mr. Singh made a brief response to the contentions of Mr. Verma reiterating his earlier 15 submission. 33. We have heard the learned counsel appearing on behalf of the parties and considered the materials available on record. The scope of interference in exercise of jurisdiction in the Letters Patent appeal in a proceeding arising out of First Appeal is within a narrow compass. The position has well been explained in a judgment of this Court reported in the case of Barhu Ram and others Vs. Butai Ram and another 1999 (2) BLJ 818. It has been held in paragraph no.15 of the said judgment that the findings of the fact recorded by the lower appellate court should not normally be interfered with in the Letters Patent jurisdiction, unless the findings are perverse or palpably unreasonable. 34. We shall thus proceed to examine as to whether the findings of the learned Single Judge in paragraph no.15 of the impugned judgment with regard to plot no.1215 is perverse or unreasonable. During the course of the proceedings, our attention was drawn towards the statement made in paragraph nos.3 and 4 of the written statement filed on behalf of defendant second set before the learned trial court claiming half share in plot nos.1215, 1216 and 1218. The said claim was reiterated by the defendant second set while filing the First Appeal in this court giving rise to F.A.No.826 of 1977, and identical position emanates from perusal of 16 the judgment rendered in T.S.No.1 of 1967, which was preferred by the defendant second set and was dismissed. As noted above, no appeal was preferred by the defendant second set as against the findings given in relation to plot nos.1216 and 1218, whereby the defendant first set (the appellants herein) were confirmed in possession of plot no.1218. Neither of the parties to the First Appeal contested the findings with regard to plot ono.1216. 35. On consideration of the rival contentions, particularly with reference to plot no.1215, and upon examination of the materials available on the record of the proceedings, we are of the view that the findings of the learned Single Judge in paragraph no.16 of the impugned judgment with reference to plot no.1215 is palpably erroneous. 36. The learned Single Judge clearly made out a third case while giving the said finding which was not pleaded by the either of the parties. The learned Single Judge was clearly in error in holding that plot no.1215 belonged to Bhadai Sahni and/or his descendants (who were defendant second set in the trial court). The said finding of the learned Single Judge runs contrary to the own stand and claim of the defendant second set as set out in paragraph nos.11 and 13 of the impugned judgment. 17 37. The finding of the Learned Single Judge in paragraph nos.17 and 18 of the judgment in relation to plot nos.1216 and 1218 upon consideration of the sale deed marked Ext.B/8, which only referred to plot no.1218 and not plot no.1216, is supported by evidence and as such does not warrant any interference in this appeal. 38. In the result, we dispose of this appeal upholding the findings of the Learned single judge in paragraph nos.17 and 18 of the impugned judgment. However, in view of the discussion made above in relation to plot no.1215, we have no o ption but to set-aside the finding of the learned Single Judge in paragraph no.16 of the impugned judgment. 39. The appeal thus is allowed in part, but without any order as to costs. S.K.Katriar,J. Patna High Court Dated the 03rd August,2009 N.A.F.R./ahk (Jyoti Saran,J.) (S.K.Katriar,J.