FIRST APPEAL No. 252 OF 2004 Against the Judgment and Decree dated 13.08.2004 passed by Subordinate Judge IIIrd, Patna in Title Partition Suit No.328 of 2000 / 158 of 2002. BALDEO PRASAD YADAV & ANR. ………. Defendants/Appellants Versus KEDAR NATH YADAV ...……… Plaintiff/Respondent ******** For the Appellant : Mr. Sidheshwari Prasad Singh, Sr. Advocate, Mr. Krishna Kishore Sinha, Advocate Mr. Ratan Kumar Sinha, Advocate with him. For the Respondent : Mr. Dhrub Narain, Sr. Advocate Mr. Mukesh, Advocate Mr. Sandeep Kumar, Advocate with him. Dated : 5thday of September, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendants have filed this First Appeal against the Judgment and Decree dated 13th August, 2004 passed by Sri Chandra Bhushan Kumar, the learned Subordinate Judge IIIrd, Patna in Title Partition Suit No.328 of 2000/ 158 of 2002 decreeing the plaintiff-respondent suit for partition to the extent of 44.33 paise share in the suit property. 2. The plaintiff-respondent, Kedar Nath Yadav, filed aforesaid partition suit claiming partition of his 44.33 paise share in the suit premises alleging that the suit property is a triple storied pacca building standing on plot No.36F having an area of 425.80 square yards of Rajendra Nagar Road Mungeshwar Sahoo, J. - 2 - No.10 B Block No.III type ‘F’ police station Kadamkuan, Thana No.4, District Patna. According to the plaintiff, Bechu Yadav had only one son, Kheyali Prasad Yadav who has two sons and one daughter, namely, Kedar Nath Yadav, the plaintiff, Baldeo Prasad Yadav, the defendant No.1 and Tetri Devi, defendant No.3. The defendant No.2, Ajay Kumar is the son of defendant No.1. Bechu Yadav died in jointness. After his death, his only son Kheyali Prasad Yadav became the karta. The lands and house of Kheyali Prasad Yadav was acquired by Patna Improvement Truest and the aforesaid land which is suit property was given in lease to Kheyali Prasad Yadav through lease deed dated 11.08.1961 executed by the Chairman, Patna Improvement Trust. Kheyali Prasad Yadav constructed up to double storied building out of joint family fund and he died on 02.02.1972. After his death, the plaintiff and defendant No.1 made construction of 4 rooms in second floor out of the amount received from the tenants of the ground floor and the first floor. Out of 4 rooms of the second floor, two rooms are in occupation of the plaintiff and two rooms are in occupation of the defendant No.1. The defendant No.1 was collecting rent upto Rs.15,000/- per month from the said joint house but he was not giving any account and thereby deprived the plaintiff from his due share in joint house. The plaintiffs demanded for amicable partition but he refused. Hence, the suit was filed for partition claiming 44.33 paise share. 3. The defendant No.1 and 2, i.e., father and sons appeared and filed a contesting written statement. The defendant No.3, i.e., daughter of Kheyali Prasad Yadav neither appeared nor filed written statement nor contested the suit. It may be mentioned here that during the pendency of this appeal, the said defendant No.3 who is respondent No.2 in this appeal, namely, Tetri Devi died and application being I.A. No.626 of 2011 filed for - 3 - substitution of her legal representatives which is pending for disposal. Heard the parties on this application also. Since the defendant No.3- respodnent No.2 neither filed written statement nor contested the suit, it is not necessary to substitute her legal representatives as it will delay the matter, therefore, the appellants are exempted from substituting her legal representatives and her name is expunged from cause title of memo of appeal under provision 22 Rule 4 sub-Rule 4 of the Code of Civil Procedure. 4. The main defence of the defendant No.1 and 2 in short is that Kheyali Prasad Yadav had got agricultural lands also and the same land was acquired by Govt. of Bihar and compensation was paid to him from which he purchased of 2 katha land through two sale deeds dated 28.08.1957 and 29.08.1957 at Sadikpur Jogi and constructed house thereafter which is known as Kankarbagh for residential purpose. During the life time of Kheyali Prasad Yadav, oral partition took place between plaintiff and defendant No.1 in the year 1971 in the month of December. In the oral partition, plaintiff got the house situated at Kankarbagh in his share and the house of Rajendra Nagar was given in the share of defendant No.1. The joint case amount of Rs.90,000/- was also divided and the plaintiff got 60,000/- whereas defendant got Rs.30,000/- after partition in the year 1971. After partition, the plaintiff was looking after the affairs of the house on his behalf and also on behalf of the defendant No.1. This defendant No.1 had very much faith of his elder brother, the plaintiff. The defendant constructed building in first floor and half portion of second floor. 5. The further case of the defendants is that the plaintiff was in need of money. So, he sold his share house at Kankarbagh and on asking by plaintiff, the defendant No.1 also went to Registry office at Hajipur where the sale deed was registered and on the request of his brother, the - 4 - defendant No.1 also signed the sale deed on good faith. The plaintiff sold his house through registered sale deed dated 24.03.1987 and then the plaintiff vacated the said house and requested the defendant No.1 to allow him to live in his house at Rajendra Nagar along with his family for some time so that he may arrange the house on rent. The defendant had full faith, therefore, he allowed him to reside in the house in two rooms. The defendants requested him many times to vacate but he avoided on different grounds. Then the defendant came to know that the plaintiff is not willing to vacate the premises on false and wrong please. According to these defendants, Kheyali Prasad Yadav died on 15th February, 1974. The plaintiff sold his house to meet the expenses of marriage of his daughters. The daughter of Kheyali Prasad Yadav was married in sound family and she was not in need of a share in house, therefore, in partition, no share was given to her. So, Kheyali Prasad Yadav partitioned in 1971 between his two sons only. The other allegations have been denied by the defendants. 6. On the basis of the aforesaid pleadings of the parties, the learned Court below framed the following issues : (i) Is the suit maintainable? (ii) Is the plaintiff has got the valid cause of action ? (iii) Is the suit hit by Section 34 of the Specific Relief Act? (iv) Is the suit hit by law of Limitation? (v) Whether the plaintiff is entitled for the relief or reliefs claimed for? (vi) Whether the plaintiff is entitled for any other relief or reliefs. 7. After trial, the learned Court below while deciding issue No.5 came to the conclusion that the plea of the defendant No.1 and 2 regarding previous partition is not tenable and the defendant No.1 and 2 have failed to prove their plea of previous partition. On the other hand, the plaintiffs proved the plea of unity of title over the suit property and as such plaintiff - 5 - is entitled to his share as claimed in the plaint. The learned Court below also held that the defendant No.1 and 2 are entitled to their 44.33 paise share. The defendant No.3 is also entitled for her share to the extent of 11.34 paise. Accordingly, the plaintiff suit for 44.33 paise share was decreed. 8. The learned senior counsel, Mr. Siddeshwari Prasad Singh submitted that the learned Court below has not properly appreciated the evidences available on record. There was no property of other party at Hajipur but by playing fraud, land measuring 1 dhur was mentioned in the sale deed with a view to get the sale deed registered at Hajipur and on the mere asking of the plaintiff, the defendant No.1 without reading the contents of the sale deed signed on the same. The defendant No.1 had full faith on his elder brother, the plaintiff, but the plaintiff by playing fraud with intention to grab the property of the defendant No.1 created the documents either in his name or in the name of the wives of the parties. The learned counsel further submitted that the plaintiff made a complaint before PRDA complaining that without permission, the defendant No.1 is constructing the second floor and, therefore, the said construction be pulled down. This action of the plaintiff shows that he is not the owner of the suit property as no owner will make such complain for demolition of his own house. The learned Court below has wrongly not relied this complaint of the plaintiff which has been marked as Ext. ‘D’. In the sale deed Ext.E/2 dated 24.03.1987, the share of the defendant No.1 has been shown as only 1 dhur and if there was no partition then the defendants have got half share in the property. To show this fact, the defendant filed the said sale deed wherein it is not mentioned that the parties have equal share but the learned Court below mis-interpreted the same. This registered sale deed - 6 - clearly shows that the plaintiff was the exclusive owner of the house at Kankarbagh which he sold, therefore, the defence of the defendant that there had been partition in 1971 stands proved. The learned counsel next submitted that the plaintiff wrongly mentioned in the sale deed that the house was sold for payment of bank loan which was obtained by the brother-in-law of defendant No.1 wherein the plaintiff and defendant No.1 were the guarantor. In fact, the house was sold by the plaintiff for meeting the expenses of marriage of his daughter which admittedly took place in the year 1988. The second daughter was married in the year 1995. Therefore, the learned Court below should have considered the fraudulent intentions of the plaintiff. According to the learned counsel, the loan of the bank was paid by the brother-in-law of defendant No.1 in the month of January, 1987 itself and therefore, there is no question of selling the house at Kankarbagh for payment of said loan on 24th March, 1987. This is again a fraud committed by the plaintiff. The documents filed by the plaintiff are not reliable because it is the case of the defendant that after partition also, the plaintiff was looking after the affairs of the suit house and the defendant- appellant had full faith on him but the learned Court below wrongly relied upon those documents and has given a finding that there had been no partition. So far possession is concerned, after selling the house at Kankarbagh, the plaintiff had no house to reside and, therefore, on his request, the defendants allowed him to reside in two rooms of the suit premises, as such, the possession of the plaintiff is permissive possession. The defendant was not knowing the fraudulent action of the plaintiff to grab the property of defendant No.1 otherwise, he would not have allowed him to reside in the house. According to the learned counsel, the witnesses including the relations of the parties have deposed that during the life time of Kheyali Prasad Yadav, there had been partition between the two brothers - 7 - and plaintiff was allotted the house at Kankarbagh whereas the suit house was allotted in the share of the defendant No.1 but the learned Court below without assigning any reason did not rely on the evidences. 9. The learned counsel for the appellant submitted that an application under Order 41 Rule 27 read with Section 151 C.P.C. has been filed by the appellant on 22.04.2009 seeking permission to adduce additional evidence to bring on record the certified copy of survey khatiyan of Khata No.257 plot No.139 Thana No.101 of village Daulatpur, Distt. Vaishali and statement of loan account of State Bank of India, to show that 1 dhur land of Vaishali mentioned in sale deed, Ext.E/2, is not in existence and that the loan amount had already been paid on 17.01.1987. According to the learned counsels these documents are essential for determining real disputes between the parties and for ends of justice, the said documents be marked as Ext. in the present case. 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 suit for partition be dismissed. 10. On the other hand, the learned senior counsel, Mr. Dhrub Narain appearing on behalf of the respondent submitted that the presumption of jointness is in favour of the plaintiff. As according to the defendants during the life time of father, there had been partition in the year 1971. According to the appellant himself, the appellant had much faith on the plaintiff. There is no case that there was any difference between the father and the son. There is also no case that there was any difference between the two brothers. No reason has been assigned as to why in such circumstances, the partition took place in the year 1971 during the life time of father. Admittedly, the father had also share in the property as has been admitted by the defendant that it is joint family property. According to the - 8 - defendant-appellants, Kheyali Prasad Yadav died in 1974 and the partition took place in the year 1971 then what happen to the share of father is not mentioned. The learned counsel next submitted that Ext.’D’ on which the plaintiff is relying much is of the year 2003, i.e., during the pendency of the suit when the dispute arose between the parties. During the pendency of the suit, the defendant was making construction, therefore, the plaintiff made the complaint. In view of the above Ext.’D’, it cannot be said that there had been partition in the year 1971 and that the defendant is exclusive owner of the suit premises. The plaintiff only made a complain with a view to stop the construction so that the defendant may not claim right exclusively in the property. So far Ext.E/2 i.e., sale deed dated 24.03.1987 is concerned, the learned counsel submitted that no doubt, it is mentioned that the vendor No.2 has 1 dhur but nowhere in the body of the sale deed, it is mentioned that there had been partition between the parties. The learned counsel further submitted that the sale deed was executed not only by the plaintiff but also by the defendant No.1 for self and on behalf of his minor defendant-appellant No.2. In the body of the sale deed, it is clearly mentioned that after the death of Kheyali Prasad Yadav, the parties are coming in joint possession of the properties. The learned counsel further submitted that it is not believable or reliable that a person who has separated himself in the year 1971 and was residing separately according to his case in the suit house will joint as co-vendor in the sale deed only on the request of plaintiff. The learned counsel further submitted that overwhelming documentary evidences has been produced by the plaintiff which shows that the plaintiff was in possession of the house and was also inducting tenants in the house which has been relied upon by the Court below and the explanation of the appellant is only to the effect - 9 - that he had full faith on the plaintiff. This explanation is neither cogent nor reliable. 11. Mr. Dhrub Narain, the learned senior counsel next submitted that the brother-in-law of defendant No.1 took loan from the State Bank of India wherein the plaintiff and the defendant No.1 were the guarantor. When the brother-in-law of defendant No.1 failed to deposit the loan amount, both the brothers sold the property and paid the loan amount. So far the payment of loan on 17.01.87 and selling the property on 24.03.1987 is concerned, according to the learned counsel, it may be possible that the person who was purchasing the property might have given advance money which was deposited earlier and then the sale deed was executed. But on that ground also, no oral evidence is admissible to explain what is stated in the sale deed. The learned counsel further submitted that it is not reliable that the plaintiff would have sold the house which was his only property and residence also for his family only for the purpose of marriage of his daughter which took place in the year 1988. No prudent man will do such thing without making any alternative accommodation for residence of his family. According to the defendant’s case after selling the property and vacating the house accommodation, he requested the defendant No.1 to accommodate him. This conduct alleged by the defendant is not reliable. For the purpose of marriage of daughter, nobody will sell everything and will become a beggar in the street. Because admittedly, except this house plaintiff had no other house as alleged by the defendant No.1. The learned counsel next submitted that considering all the evidences and materials available on record, the learned Court below has rightly found that there is unity of title and possession between the parties. On these grounds, the - 10 - learned counsel prayed that the First Appeal is liable to be dismissed with cost. 12. In view of the above rival contentions of the parties, the only point arises for consideration in this appeal is as to whether the parties have got unity of title and possession and the plaintiff is entitled to his share to the extent of 44.33 paisa and whether the impugned Judgment and Decree are sustainable in the eye of law. 13. According to the plaintiff’s case, the suit property is joint and he has got 44.33 paise. According to the defendants, there had already been partition in the year 1971 during the life time of their father, Kheyali Prasad Yadav. To prove their respective cases, the parties have adduced oral as well as documentary evidences. Although the plaintiff has examined 29 witnesses, there are only few material witnesses. Most of the witnesses are formal who have proved rent receipts, letters electric bills etc.. Out of the material witnesses, P.W.2 has stated that the suit property was acquired by Kheyali Prasad Yadav and he constructed house till the second floor and thereafter he died. The plaintiff and defendant No.1 had their another house at Kankarbagh which they sold jointly and there was no partition between them. P.W.17 is the plaintiff Kedar Nath Yadav himself. He has fully supported his case as made out in the plaint. According to this witness, defendant No.3 is his sister and there was no partition between them therefore, on the death of their father, his share will be 44.33 paise only. He has also stated that he was collecting rent from the tenants of first floor and the defendant No.1 was collecting rent from the tenants of ground floor after death of their father. The house of kankarbagh was sold by both to discharge the liability of guarantor towards the loan taken by brother-in- law of defendant No.1 wherein both the brothers were guarantor. He has - 11 - denied that he is residing in the suit house on the permission of defendant No.1. He has proved the letter of tenancy dated 01.03.1984 as Ext.’5’ and Ext.’6’. He has also proved the original map of the house which has been marked Ext.’7’. He has also stated that the suit premises stands in the name of plaintiff’s wife, Panpati Devi and defendant’s wife, Shanti Devi and they are paying the municipal tax half and half. P.W.21 has also stated in the same lien as that of the P.W.12. He has further stated that the 3rd floor was constructed jointly by the plaintiff and defendant No.1. All the other witnesses are formal who have proved the documentary evidences which have been marked Ext.1 series to Ext.11 series. 14. It is well settled principle of law that the normal state of every Hindu Family is joint. In the absence of proof of division, jointness is presumed and this presumption is stranger in case of the brothers. Here, the plaintiff and the defendants are brothers and according to the defendant, partition took place during the life time of father. Since the presumption is in favour of jointness, i.e., in favour of the plaintiff, it is for the defendant to prove the fact that there had been partition between them in the year 1971. Now, let us see the evidences adduce by the defendant in support of his case. According to the defendant, there was oral amicable partition. 15. D.W.1 has stated that except the two house at Kankarbagh and Rajendra Nagar, Kheyali Prasad Yadav had no other property. He during his life time, partitioned the house between his two sons. Rajendra Nagar house was allotted to Baldeo Ji, defendant No.1. Kankarbagh house is allotted to Kedarnath, plaintiff. At paragraph 5 in examination-in-Chief, he has specifically stated that after partition both of them started living in their house separately. Therefore, according to this witness, the parties were - 12 - residing separately in their respective house after partition, i.e., after 1971. He has stated that for the marriage of his daughter plaintiff sold his house and started residing in the house of the defendant. Therefore, according to this witness, after partition in the year 1971, the plaintiff was residing separately with his family in his house and thereafter he came to reside in the house of the defendant after he sold his house in the year 1987. At paragraph 13, he stated that the partition of the year 1971 was made by the Panches and he has named the Panches also. At paragraph 14, he has stated that in the way while he was coming to Court, he knew about previous partition. Therefore, according to this witness, he has admitted that regarding partition, he came to know while he was coming to Court for deposition. 16. D.W.2 has also stated that in the partition, the kankarbagh house was allotted to Kedarnath, plaintiff whereas the hosue of Rajendra Nagar was allotted to Baldeo, defendant No.1 during the life time of Kheyali Prasad Yadav in the year 1971. Plaintiff sold his house for meeting expenses of marriage of his daughter and then started living in the house of defendant and for purchasing new house and land. It may be mentioned here that it is not the case of the defendant that plaintiff sold the property for purchasing new house and land. At paragraph 17, he had admitted the fact that he was not present at the time of partition. He knows that no Panches were there while partition took place. Therefore, the evidence of this witness is contrary to the evidence of D.W.1. According to D.W.1, the partition was done by the Panches whereas according to this witness, there were no Panches. However, both of them admitted that they were not present in the partition, therefore, they have heard about the partition. As such they are heresay witness. D.W.3, 4 and 5 are formal witness. D.W.6 - 13 - has stated that he had supplied bricks and sand to defendant No.1 for construction of house. D.W.7 has stated that Baldeo had constructed the second floor and 3rd floor. D.W.8 is the defendant No.1 himself. His evidence is similar to that of defence in the written statement. At paragraph 13 of his evidence, he admitted the fact that except the two houses, his father had no other property. At paragraph 18, he stated that he had not read the contents of the sale deed by which the Kankarbagh house was sold. He has stated that the bank loan account was deposited by his brother-in-law and not by the plaintiff.