1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: S.B. Civil First Appeal No.95/1988 Saddiq & Ors. vs. Jamal & Anr. Date : 22nd July, 2010 HON'BLE JUSTICE SHRI PRAKASH TATIA Mr.AK Rajvanshy, for the appellants. Mr.RL Jangid, for the respondents. - - - - - BY THE COURT : REPORTABLE Heard learned counsel for the parties. This appeal is against the judgment and decree dated 4.6.1988 passed by the learned Additional District Judge, Nagaur dismissing the plaintiffs' suit for partition of plot no.232 Mata. The plaintiffs/appellants' case as pleaded is that plot no.232 Mata is a plot for procuring salt and on this plot, the plaintiffs and defendants used to do the business since times of their forefather. The plaintiffs and defendants used to take out the salt from that plot in their annual turn. However, the plaintiffs admitted in the 2 plaint that the said plot no.232 Mata is registered in the Government department in the name of defendants after the death of Mana. The defendants in the year 1982 stopped the plaintiffs from taking benefit of their turn in that ancestral property. The plaintiffs, therefore, filed this suit for partition of plot no.232 Mata. The defendants submitted that not only the plot no.232 Mata but plots no.143, 144 and 54 Mata were also ancestral properties of the plaintiffs and defendants. All ancestral properties were partitioned about 30-31 years ago, obviously from the date of filing the written statement by the defendants, which was filed on 7.5.1982. The plaintiffs filed additional pleadings in the form of rejoinder wherein they stated that they have right to file suit for any particular property and, therefore, they have filed the suit for partition for plot no.232 Mata. The plaintiffs further pleaded that if they had not filed suit for partition of plots no.143, 144 and 54 Mata, then the defendants are free to file suit for partition. The plaintiffs denied the partition between the ancestors with Jamal 30-32 years ago. The plaintiffs then pleaded that no partition took place and the defendants are taking out salt from plot no.232 Mata whereas in that plot, the plaintiffs are also having share. In rejoinder, the plaintiffs stated that defendant no.2 Munshi 3 was given in adoption to Allah Rakh. In para no.5 of the rejoinder, the plaintiffs specifically pleaded that they have not got the plots no.143, 144 and 54 Mata in their name and again stated that the plaintiffs have right to file suit for only plot no.232 Mata. The trial court framed the issues whether the plot no.232 Mata was partitioned 31 years ago and came in the share of the defendants ? The burden of this issue was placed upon the defendants. The trial court then by order dated 31.5.1985 framed one more issue i.e. issue no.1A putting burden upon the plaintiffs to prove that the plot no.232 Mata is a joint property of plaintiffs and defendants and the plaintiffs have half share in the said plot. Issue no.2 was framed that the plaintiffs did business of salt on plot no.232 Mata with the consent of the defendants. The defendants also took the plea that the suit is barred by time. One more issue no.2A was framed on 12.4.1984 on the basis of the plea taken by the defendants that the plaintiffs' suit is not maintainable as the plaintiffs have not prayed for any relief for plots no.143, 144 and 54 Mata. In the trial court, the plaintiff Saddiq gave his statement as PW1 and produced witnesses PW2 Abdul Rahman, PW3 Salim, PW4 Abdul Rahman s/o Ibrahim, PW5 Mamdeen Khan, PW6 Vishwamitra Arora and PW7 Mst. Pyari, mother of the plaintiffs. The defendant Jamal gave his statement as DW1 4 and produced witnesses DW2 Kamaludeen, DW3 Mohan Ram and DW4 Surja Ram. The plaintiffs produced copies of the documents obtained from the Government Department managing the salt manufacturing in support of his plea that the plot no.232 Mata is ancestral property of the plaintiffs and defendants. The trial court while deciding issue no.1 held that initially the plot no.232 Mata was ancestral property and after death of plaintiffs' grand father and defendants' father – Man, the said plot came in the share of the defendants in partition. The issue no.1A was decided accordingly holding that at the time of filing of the suit, the plaintiffs had no share in the said plots. The trial court while deciding issue no.2 held that the plaintiffs' father if was engaged in salt business on plot no.232 Mata, then it was because of the consent given by the defendants and it was not in his own right. While deciding issue no.2A, the trial court held that there is no dispute in the suit about plots no.143, 144 and 54 Mata. The trial court also held that the plaintiffs had no right of his term for preparing salt on the said plot no.232 Mata and ultimately, the plaintiffs' suit was dismissed. Hence, this regular first appeal. Learned counsel for the plaintiffs/appellants 5 vehemently submitted that the plaintiffs' case was very specific and clear and they filed the suit for plot no.232 Mata and they fully proved that this plot was ancestral property and heavy burden was on the defendants to prove that the plot in question came in their share on account of partition as alleged. Learned counsel for the plaintiffs in support of his contention relied upon the judgment of the Hon'ble Supreme Court delivered in the case of K.Laxmanan vs. Thekkayil Padmini & Ors. reported in (2009) 1 SCC 354. Learned counsel for appellants also submitted that the documentary evidence produced by the plaintiffs clearly proved that the plaintiffs' father used to prepare salt on the plot in dispute even after the alleged partition and, therefore also, it was a joint property of the plaintiffs and defendants when the suit was filed. Learned counsel for the appellants referred the relevant evidence and also stated that the defendant in his statement clearly admitted that the plaintiffs' father was manufacturing salt on the plot in question and, therefore, the trial court committed serious error of fact in dismissing the suit of the plaintiffs. Learned counsel for the respondents/defendants supported the judgment of the trial court dated 4.6.1988. 6 I considered the submissions of learned counsel for the parties and perused the record. The main question for consideration before this Court in appeal is that whether the plot no.232 mata was ancestral property of the plaintiffs and defendants and whether the properties of ancestors of plaintiffs and defendants were already partitioned about 30-31 years ago orally. In view of evidence which came on record, it cannot be disputed that the plot no.232 mata was originally belonging to the plaintiffs' forefather and defendants' father. Now the question, therefore, is that whether the property of the plaintiffs' grand father and defendants' father namely, Man were partitioned as alleged by the defendants. Learned counsel for the plaintiffs was right in submitting that in that situation, it was for the defendants to prove that the partition took place. Before recording finding on the fact whether the partition of the properties of the ancestors of the plaintiffs and defendants took place or not, it is relevant to find out the basis on which the defendants pleaded about the partition as there is no written document evidencing the partition and it is alleged that the partition was oral. It is true that when the properties are 7 admitted to be ancestral properties, then heavy burden of proof lies upon the party alleging partition. Equally well settled law is that when one party alleges partial partition, then heavy burden lies upon him to prove the circumstances in which instead of partition of all the ancestral/ joint properties, partial partition took place. In this case, the trial court held that plot no.232 mata was initially ancestral property of the parties. In the plaint, it is not the case of the plaintiffs that partial partition took place and only plot no.232 mata was kept unpartitioned. The plaintiffs nowhere pleaded the circumstances in which there could have been any justification for partial partition. In a case where there are number of ancestral properties and the plaintiff files suit for partition of some or one of the properties than it is his duty to plead reason for filing suit for partition of some or one of the properties out of several properties. And if the plaintiff's case is that though originally there were several ancestral or joint properties and those were partitioned in earlier partition and one or some properties were not partitioned in earlier partition than this fact is also required to be pleaded because of the reason, normal presumption is that in one partition, all the properties will 8 be partitioned unless there exists reasons for not partitioning all the properties. This position is more strong when the properties are separate and independent to each other. For example, in dwelling house even after partition, some portions may be kept common/joint. In another type of cases where other properties are partitioned but business is kept joint. Here in this case admittedly, Kyari No.232, a business property, was not the only property of the parties' ancestors but from evidence and from non-specific denial by the plaintiffs in the pleadings and from evidence of the defendants' witnesses, it is proved that parties ancestors had more salt kyaries, then in this situation, it was the duty of the plaintiffs to plead and prove the reasons for partial partition of business properties which the plaintiffs have not pleaded. The plaintiffs' case that he had right to file suit for particular kyari is if accepted than he is seeking partial partition of business properties. But the facts reveal that those other kyaries are already entered in the plaintiffs' name and kyari in dispute is entered in the defendants' name in Government record several years, may be about 30- 35 years ago in the name of the defendant which is sufficient proof of partition of all the ancestral properties including business properties of the plaintiffs and the defendants. 9 Then if we look into the evidence produced by the plaintiffs themselves, it is clear that the plaintiff Saddiq in his cross examination admitted that the plots no.143, 144 and 54 Mata are in his father's name and then he admitted that he does not know that from where his father got these plots and thereafter he admitted specifically that the plaintiffs' father was running these shops obviously salt production on the plots no.143, 144 and 54 Mata since the time of ancestors. Then he admitted that these plots were not purchased by the plaintiffs' father and thereafter, he stated that those plots were given to his father by the Government. Therefore, this admission of the plaintiff Saddiq is sufficient for holding that the plots no.143, 144 and 54 Mata were also ancestral properties of the plaintiffs and defendants because of the plain and simple reason that not only the plaintiff Saddiq, who was of the age of 58 years in 1985, admitted but the same is the statement of his mother PW7 about the fact of partition which took place 30-35 years ago as she admitted in her cross examination. However, she denied that the plots no.143, 144 and 54 Mata were belonging to his father-in-law i.e. grand father of the plaintiffs but the fact of partition is admitted fact by the plaintiffs' mother who was of the age of 70 years at that time. Not only this, the plaintiffs' own witness even PW2 who is 10 neighbour clearly stated that the plots no.232 mata, 143, 144 and 54 Mata were joint property of the parties and he admitted that the plots no.143, 144 and 54 Mata were also the ancestral properties of the parties. Coupled with the above evidence, if we look into the stand of the plaintiffs in rejoinder, then the plaintiffs nowhere denied that those plots were not ancestral properties of the plaintiffs and defendants but the plaintiffs stated that as the plaintiff filed the suit for plot no.232 mata, the defendants also can file the suit for partition. The plaintiffs also pleaded that they had choice to file the suit for partition of a particular plot and that evasive reply proved that though the plots no.232 mata, 143, 144 and 54 Mata were ancestral properties but the plaintiffs have chosen to file suit for plot no.232 mata. Therefore, in the light of these important facts the findings recorded by the trial court, findings of trial court find more support in the light of the legal position and the trial court has not committed any error in holding that the plot no.232 mata along with other plots no.143, 144 and 54 Mata were ancestral properties of the plaintiffs and defendants and after the death of Man i.e. plaintiffs' grand father and defendants' father, the properties were partitioned and plot no.232 mata came in the share of the defendants. The documentary evidence which 11 is relied upon by the plaintiffs' counsel do not help the plaintiffs in any manner because of the reason that those entries were made on the basis of the persons occupying the plot for the purpose of manufacturing salt at the relevant time and those entries only prove the use of the land by the persons and not ownership or title. In view of the above discussion, there is no merit in this appeal and the same is hereby dismissed. No order as to cost. [PRAKASH TATIA], J. S.Phophaliya