FIRST APPEAL No.18 OF 1996 (Against the Judgment dated 3.8.1995 and Final Decree dated 18.12.1995 passed by the Subordiante Judge- III, Sasaram in Title Suit No. 82 of 1994) 1. Rajendra Prasad. 2. Dharmendra Prasad @ Dharmendra Kumar Both sons of Suraj Sah. 3. Chandan, Minor son of Rajendra Prasad under the natural guardian of Rajendra Prasad. All residents of Village- Barah Pathar, P.S. Dehri, District- Rohtas -------- Defendatns/Appellants Versus 1. Bhola Prasad, son of Suraj Sah. 2. Anand. 3. Gautam. 4. Siddhartha. All minor sons of Bhola Prasad under the natural Guardian of his father Bhola Prasad. All residents of Mohalla- Purani G.T. Road, Dehri. P.S.-Dehri, District- Rohtas -------- Plaintiff/Respondents Ist Set. 5. Swatantra Dev, S/o late Dharm Chand Deo, Adhyachh, Sadaguru Sadaphal Deo Vihangam Jog Sansthan, Britikut Ashram, Pakari, Balia, U.P. -------- Plaintiff/Respondents IInd Set. For the Appellant - Mr. Dhrub Narayan, Sr. Advocate Mr. Jitendra Prasad Singh, Advocate For the Respondents- Mr. Raghib Ahsan, Sr. Advocate Mr. Abbas Haidar, Advocate For the Respondents 5-Mr. Ishwari Singh, Advocate. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The defendants have filed this First Appeal against the final decree in a partition suit challenging the allocation of shares of the properties in the suit which according to them is inequitable and unfair. 2. The suit was filed by Bhola Prasad claiming partition of the joint family properties situated in Sasaram, Rohtas. The plaintiff has claimed 1/4th shares in the suit properties. The share of the plaintiff was admitted by the defendants and as such the final decree was 2 prepared. For the purpose of preparation of the final decree, a Pleader Commissioner was appointed. The report of the Pleader Commissioner is on record. The plaintiff challenged the findings of the Pleader Commissioner and the allocation of shares, and the Trial Court on the basis of submissions made on behalf of the plaintiff reversed the findings of the Pleader Commissioner and allowed the claim of the plaintiff as far as it concerned the allocation of shares of the suit properties. 3. There is no dispute regarding the description of the lands of the joint family property which are three houses, agricultural land and a bank account. 4. Before dealing with the merits of the claims of the respective parties it will be relevant for the purpose of deciding the issues to refer to certain pleadings of the parties specifically with respect to Plot No. 1255 situated on old G.T. Road, Dehri which also has a sweet meat shop known as Gopal Misthan Bhandar. 5. The plaintiff has stated at paragraph 1 that the parties are the members of the joint hindu family and mainly “they are holding business of sweets”. At paragraph 2 it is stated that the parties have got two kitas of residential houses at Dehri Town and a sweet shop known as Gopal Misthan Bhandar wherein the first floor is used for residential purpose. Paragraph 4 is very relevant inasmuch as it states 3 that the “only means of livelihood of the family is the shop and nothing more being run under the name and style of Gopal Misthan Bhandar and there is no other business. The defendants also assert that Gopal Misthan Bhandar is a joint family business run by the family members. In this background this Court will examine the findings of the Pleader Commissioner and the Trial Court. 6. Before the Pleader Commissioner the parties give valuation of the properties. The valuation of the land as per the report of the District Magistrate. (I may clarify that the State of Bihar has fixed valuation of the land for whole State which is available in the Registry office). This chart invludes the estimate given by the parties, the State valuation of the property and the value fixed by the Pleader Commissioner. Comparative Valuation Chart S.I. No. Name of the property with Mohalla (village) Area of the property Total valuation given by the plaintiffs Total valuation given by the defendants Estimated cost of the State Government Valuation of the Pleader Commi- ssioner Total value including construction 1. Plot No. 1255 Old G.T. Road, Ward No. 10, Dehri, Gopal Misthan Bhanbdar, Dehri 9 dhoor 14 dhurki Rs. 2,00,000/- (inclusive construction) Rs. 5,00,000/- (inclusive construction) 4,75,000/- Rs. 50,000/- per dhur Rs. 4,85,000/- 2. Plot No. 1298 Ward No. 11, Tirgun Dehri 5 dhoor 6 dhurki Rs. 2,00,000/- (inclusive construction) Rs. 1,00,000/- (inclusive construction) 4,75,000/- Rs. 25,000/- per dhur Rs. 5,09,200/- 3. Plot No. 330 Ward No. 16, Mohalla Barah, Dehri 25 dhoor 9 dhurki Rs. 20,00,000/- (inclusive construction) Rs. 4,00,000/- (inclusive construction) 4,75,000/- Rs. 60,000/- per dhur Rs. 5,09,000/- 4. Culturable land village Katar Inderpuri, Khata Nos. 127 & 1266 3.51 Acres Rs. 5,00,000/- (consolidated) This valuation is only for an area of 3.57 @ Rs. 25,000/- per acre Rs. 87,750/- The valuation is only for 3.57 acres Rs. 3,714/- per decimal. Rs. 60,000/- per dhur Rs. 3,34,200/- 4 Acres. Total valuation The chart reveals that the plaintiff-respondents has undervalued Plot No. 1255. The valueby the appellant- defendants and the Pleader Commissioner is approximately the same. The entire dispute revolves around this piece of land because of its location and due to the fact that “Gopal Misthan Bhandar” is on the ground floor of the building on Plot No. 1255. 7. I may point out that the plaintiffs and defendants have wrongly submitted the area of agriculture lands as only 3.57 Acres. Actually it is 5.37 Acres. 8. With respect to the house over Plot No. 1255, Khata No. 111, Area 9 Dhur 14 Dhurkis also known as Gopal Misthan Bhandar, it has been said that there is a sweet shop on the ground floor. The family of the plaintiff lives on the upper floor of the house and one room on the first floor has been locked by the defendant and was in the use of the defendant. The second house is on Plot No. 1298 and it is a Kutcha construction about 10 yards away from the G.T. Road and is approachable by a lane which is 10 feet wide. Similarly Plot No. 330 covering 25 Dhurs and 9 Dhurkis is divided into two parts. The southern part has area of 10 Dhurs. It is well constructed and has rolling shutters in the front towards east. The second portion of the house i.e. the northern part is covering an area of 15 Dhurs and 9 Dhurkis and is an old double storeyed construction and has 5 two newly constructed shops. The ground floor is used for business purposes mainly on rent and the first floor is the residential portion of the defendants. All these houses are centrally located well connected to the market and are approximately of the same value. 9. Since, there was heated arguments, allegations and counter allegations between the plaintiffs and the defendants regarding the value of the houses in question this Court with consent of the parties sent for a report from the District Magistrate regarding the Official value of the houses and the agricultural lands as fixed by the State Government which is included in the chart above. Of Course, these are the approximate values minus the cost of construction etc. The Pleader Commissioner has fixed the value of the lands on the basis of actual location. It may be noted that the value fixed by the Government, of the lands in one locality is treated to be of same value even though there may be certain disadvantages in certain plots of that locality by virtue of their location, approachability, surroundings etc. 10. Accordingly the Pleader Commissioner has come to the conclusion that the plaintiff being entitled to 1/4th of the property and he should get property worth Rs. 3,65,175/- and the respondents 1, 2, 3 and 4 should get property worth Rs. 10,95,525/-. The Pleader Commissioner held that since the main source of income is Gopal Misthan 6 Bhandar it should be allotted to both the parties and has thus allotted 1/3rd portion towards east to the plaintiff and 2/3 towards the west to the defendant. The plaintiff has also been allotted the Southern portion of the share of the house in Plot No. 330. Plot No. 1298 have been allotted to the share of the defendants. The entire agricultural lands have been allotted to the share of the defendants appellants. Similarly, the cash deposit in the Saving Banks Account in Central Bank of India, Dehri-on-Sone amounts to Rs. 3,30,000/-. Accordingly the plaintiff has been allotted a sum of Rs. 82,500/-and rest amount of Rs. 2,47,500/- has been allotted to the defendants. 11. As against the aforesaid recommendation of the Pleader Commissioner, the Court below after recording the submissions of the plaintiff and wrongly relying on the plaintiff submission that the plaintiff was running Gopal Misthan Bhandar the sweet shop has allowed the plaintiff to have the entire house along with the shop of Plot No. 1255. The said allocation of the share has been made on the submission made on behalf of the plaintiff that he is willing to give up the share in the other properties. The court below has also come to a finding that the valuation given by the Pleader Commissioner is not correct and has estimated that the value of the property on Plot No. 1255 comes to about Rs. 5,00,000/- and the value of property on Plot No. 1298 is 3,00,000/- whereas the value of property on 7 Plot No. 330 is about 5,09,000/-. The Trial Court has not disturbed the finding of the Commissioner as far as the allocation of the amount in the Savings Banks Account and the Agriculture land is concerned. 12.The findings of the Trial Court are erroneous as he has not come to the correct finding with respect to the value of the property or has not given any reason for holding that the report of the Pleader Commissioner was incorrect. The Trial Court has relied on the submissions made on behalf of the counsel for the plaintiff-respondent which are not backed by any reasons. The order of the Trial Court does not give a single valid reason for upsetting the report and the suggestions made by the Pleader Commissioner except to say that the plaintiff is ready to give up his share in the other joint family properties except the bank account if he is allotted the Plot No. 1255 situated on old G.T. Road, Ward No. 10 which causes the main bone of contention i.e. Gopal Misthan Bhandar. 13. Learned counsel appearing on behalf of the appellant-defendants submitted that the finding of the Trial Court is erroneous in view of the fact that it has been admitted by the plaintiff that Gopal Misthan Bhandar is a joint family business and the only source of income of the family. I agree with the submissions made on behalf of the appellant. The location of Gopal Misthan Bhandar is near the Hanuman Temple and in view of this fact the sweet shop 8 is popular and has a roaring business. This business according to the pleadings of the plaintiff is a joint family business and as such it would be unfair and unjust to allow only the plaintiff to enjoy the benefits and income derived from the sweet shop as it is not the personal business of the plaintiff. It was also argued on behalf of the defendants that they are equally willing to give up the shares in the two other properties if they are given the house along with the business of running Gopal Misthan Bhandar. In my view such a proposition would be unacceptable as the entire family earns its livelihood through the business, it would be unfair just to handed it over to any one party and deprive the other of the benefits of running the sweet shop. In view of the aforesaid fact I uphold the findings of the Pleader Commissioner taking into account the value of the property and the fact that Gopal Misthan Bhandar is a joint family business. 14. On the day when the last arguments were being advanced by the parties, affidavits, supplementary affidavits and an application for amendment of the plaint have been filed by the plaintiff-respondent. 15. An amendment application has been filed stating therein that defendant no. 1 Suraj Sah father of the plaintiff has died on 12.5.2001 and as such the plaintiff would be entitled to ¼ share. A rejoinder petition has been filed to the amendment petition stating therein that Suraj 9 Sah had executed a will which has been put to probate and as such it is submitted that the plaintiff would be entitled to ¼ share only after the probate case is disposed of. The plaintiff has also made a prayer that he may be permitted to add certain paragraphs in the plaint inasmuch as it has been stated that he may be permitted to say that the sale deed executed with respect to agricultural property would be hit by principles of lis pendence and that the matter may be remanded to the Court below to carb out ¼ share in the suit premises. 16. In the supplementary affidavit, the respondents have stated that the defendants had sold a portion of the agricultural land. The appellants admitted that they have sold only a portion of the agricultural lands and the rest of the lands remain untouched. In fact the claim of the respondents is that the appellants have sold out the best portion of the agricultural land and the rest of lands have sub-merged in the river as such the plaintiff-respondents will suffer irreparable loss because of the transfer of the lands by the appellants and he should be compensated in terms of cash rather than allocation of agricultural land as the lands do not exist for the purpose of carving out his share of the agricultural lands. 17. At this stage the appellant-defendants had objected during the course of the argument to the allocation of ¼ share to the plaintiff-respondent on the ground that 10 the probate case is pending. I find that this Court cannot pass any order in favour of the respondents staying the proceedings and judgment and allocation of shares made in the partition suit on the basis of the probate case. The only leave which can be given to the parties is that either of the parties may move the Court below for order of stay in case either of the parties is disposing of more than 1/3 of the share as allocated by the Pleader Commissioner. 19. This Court allows the amendment application of the plaintiff to the extent that he would be entitled to ¼ share in the suit premises. I thus direct that the Court below should prepare a decree by allocating ¼ share to the plaintiff-respondent with respect to Plot No. 1255 on Old G.T. Road, Dehri and with respect to the money deposited in the bank. The decree will be prepared in accordance with the allocation of shares as mentioned in the report of the Pleader Commissioner submitted by Anand Saran Prasad on 13th June, 1995 to the Sub-Judge, III, Sasaram. If there is any difficulty in grant of ¼ share in Plot No. 330 by virtue of any fact then the Court should adjust the share of the plaintiff-respondent in the agricultural properties so as the equalize the shares of the parties. In case there is some dispute raised with respect to the agricultural property, the Court below may get the agricultural land and site examined by appointment of a Pleader Commissioner and if it is found that the agricultural lands have sub-merged 11 in water compensate the plaintiff-defendant by directioning the appellant-defendants to pay a sum of money only with respect to that portion of the share to which the plaintiff is entitled by virtue of the death of his father. 20. This appeal is allowed to the extent mentioned aforesaid. Patna High Court March, 6th, 2009 Sanjay/.A.F.R. (Sheema Ali Khan, J.)