FIRST APPEAL No. 237 OF 1979 Against the Judgment and Decree dated 07.12.1978 passed by Sri Shyama Prasad Singh, Addl. Subordinate Judge Ist, Patna in Title Suit No.66 of 1971 / 29 of 1978. Bishudhari Pd. & Anr ………………….………. Plaintiffs/Appellants Versus Mostt.Shanti Devi @Tetri Devi & Ors. …………….……… Defendants-Respondents ******** For the Appellant : Mr. Pramod Kumar Gaya Dutta, Advocate Mr. Avinash Kumar, Advocate Mr. Jitendra Narayan, Advocate . For the Respondent : Mr. Devendra Prasad Singh, Advocate Mr. Braj Nandan Prasad Sinha, Advocate Mr. A. K. Singh Tarun, Advocate Mr. Nawal Kishore Kashyap, Advocate Dated : 16thday of November, 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 plaintiffs-appellants have filed this First Appeal against the Judgment and Decree dated 07.12.1978, the decree sealed and signed on 22.12.1978 by Sri Shyama Prasad Singh, the learned Addl. Subordinate Judge Ist, Patna in Title Suit No.66 of 1971 / 29 of 1978 dismissing the plaintiff’s suit for partition. 2. The plaintiffs filed the aforesaid Title suit claiming partition of 1/35th share of the plaintiff in the properties described in different schedules of the plaint. Mungeshwar Sahoo, J. - 2 - 3. The plaintiff’s case in short is that one Ram Prasad Gope had 3 sons and 3 daughters, namely, Rambaran Rai, Deobaran Rai, Bisundhari Rai (plaintiff No.1), Guljaro Devi, Phulgharo Devi, Jagmano Devi. The second son, Deobaran Rai died in the year 1967 leaving behind his widow Mostt. Dhan Kuer who is defendant No.8 and two minor daughters who are defendant No.6 & 7. Ram Prasad Gope died on 16.10.1969 in the state of jointness leaving behind his widow, Mostt. Ugia Devi and two sons Rambaran and plaintiff Bishundhari and 3 daughters as Deobaran had pre-deceased him. Rambaran Rai died in the state of jointness on 06.06.1970 leaving behind his widow Ram Kumari Devi, the defendant No.4, 3 sons and one daughter who are defendant Nos.1, 2, 3 and 5. All are in joint possession of the suit properties. The joint family had ancestral property and that Ram Prasad Gope had acquired property from the income and savings of the joint family property from time to time which are all in joint possession. The plaintiff requested the defendant for partition the property but they did not agree. Therefore, the suit for partition was filed. The plaintiff No.2 is the son of plaintiff No.1. The 3 daughters of Ram Prasad Gope are defendant No.9, 10 and 11. The widow of Ram Prasad Gope is defendant No.12. 4. On being noticed, the defendant No.12, Mostt. Ugia Devi, widow of Ram Prasad Gope filed separate written statement. The defendant No.1 and 4 filed separate contesting written statement. The intervener-defendant, Bulkan Rai filed separate written statement. The minor defendants filed separate written statement. 5. According to the written statement of Ugia Devi, the defendant No.12 there had already been partition between the Ram Prasad Rai and Ramdhani Rai in the year 1916. Ramdhani Rai had only one son, Ajodhya Rai who also died and his widow Mostt. Mungiya Devi became the owner of the property. She gifted her all properties to Smt. Shanti Devi, wife of plaintiff No.1 on 28.11.1973. Mostt. - 3 - Mungiya Devi was in possession of the property of her husband and after her death, Shanti Devi is coming in possession. So far the rest portion of the claim of plaintiff is concerned, she admitted the facts and supported the plaintiff’s case. 6. The contesting defendant No.1 and 4 filed the written statement contesting inter alia that the plaintiff has not given the other part of the genealogy. According to them, Sumera Rai had two sons, namely, Ramdhani and Ram Prasad Gope. Ramdhani Rai died long ago in the state of jointness with his son and brother and brother’s sons. After his death, his only son Ajodhya Rai continued to be the member of joint family and he died in the state of jointness leaving behind his widow, Mungiya Devi. There was no partition between Ramdhani Rai and Ram Prasad Rai. Since Ajodhya Rai had no issue and had great love and affection for the sons of Rambaran Rai, he executed a Will in favour of defendant No.1 to 3 on 18.06.1967 expressing his desire that after his death, his widow Mungiya Devi will maintain herself within his properties but she would have no right to alienate or encumber the same and on her death, the defendant No.1 to 3 would became the absolute owners thereof. Ajodhya Rai died on 03.09.1968. The plaintiff and the other defendants have no interest in the half share of Ajodhya Rai but because the share of Ajodhya Rai being in jointness and there was no partition the suit is bad for partial partition of the joint properties and plaintiff also omitted to include valuable town property, i.e., house and land of Ram Prasad Gope at Patna which was self-acquired property of Ram Prasad Gope. The branch of Rambaran have got 1/3rd share and the branch of Deobaran Rai got 1/3rd share and the plaintiff have got 1/3rd share only. Because of non-inclusion of the said property, the suit must fail. 7. The further case is that the properties of Ramdhani and Ram Prasad Gope are still joint including the suit properties. The plaintiffs have left out half of the lands for partition. Unless the said property is included and Mungiya Devi is - 4 - made party in this suit, the suit cannot proceed. The list of the properties has been mentioned in the joint written statement. On these grounds the defendants prayed that the suit be dismissed. 8. The intervener’s case is that the plaintiff have wrongly included 13 decimal land being the western portion of plot No.289 which was in possession of this defendant and exclusively belong to him. The plaintiff and defendants have no unity of title and possession with regard to the aforesaid land. Prior to survey, the land belonged to one Chamru Mahto who was agnate of plaintiffs and defendants. On the death of Chamru Mahto, it came to the family of plaintiffs and defendants including the ancestor of intervener in the year 1903. It was recorded at such in the survey each having 1/6th share. The father of the intervener, namely, Kalicharan got 13 decimal in partition in plot No.289 which is wrongly included in the present suit. The story of redemption by 3 co-sharers is wrong. 9. On the basis of the aforesaid pleadings, the following issues were framed by learned Court below : (i) Is the suit as framed maintainable? (ii) Have the plaintiffs cause of action for the suit? (iii) Is the suit barred by waiver, estoppel and acquiescence? (iv) Is the suit bad for non joinder of necessary parties? (v) Is the suit bad for partial partition for non-inclusion of the property in schedules 1 and 2 of the written statement? (vi) Are the plaintiffs entitled to decree for partition? So, in respect of what share? (vii) To what relief or reliefs, if any, are the plaintiffs entitled? 10. After trial, the learned Court below came to the conclusion that the story of previous partition between the branch of Ramdhani and Ram Prasad was not correct and actually no partition had taken place between them vide paragraph 24. The Patna house land also belong to Ram Prasad Gope which have not been included in the suit vide paragraph 26. The intervener-defendant has got title and - 5 - possession over 13 decimals of plot No.289 and the same has to be excluded if at all partition is ordered by the Court vide paragraph 28. Half of the property of joint family have not been included in the suit as such this suit is bad for partial partition and in absence of the entire properties, there would be practically difficult in affecting partition. Vide paragraph 29 Mungiya Devi, wife of Ramdhani was alive but she has not been made party in the suit, therefore, the suit is bad for non- joinder of necessary party. On these findings, the learned Court below dismissed the suit. 11. The learned counsel, Mr. Gaya Dutt, appearing on behalf of the appellant submitted that the learned Court below has not approached the case in the right prospective in view of the pleadings of the parties. According to the defence itself, the half property of Ramdhani branch has not been included in the suit. The learned Court below did not consider the statement of defendant No.12 made in the written statement to the effect that there had already been partition between Ramdhani and Ram Prasad in the year 1916. After filing written statement, she died and, therefore, her statement is admissible in evidence. According to the defendants, this half property has not been included. This is their specific case which itself indicate that there had been partition between Ram Prasad and Ramdhani. The learned Court below also failed to consider that the defendants admitted the case of the plaintiff pleaded in the plaint that the parties are joint. The defendants never claimed that the other half of the properties of Ramdhani should also be partitioned. Their only defence is that the other half has not been included and Mungiya Devi also be added as party on the ground that there had been no partition between Ramdhani and Ram Prasad. According to the learned counsel, the plaintiffs pleading regarding jointness between the parties is admitted. The defence case to the effect that there had been no partition between Ramdhani and Ram Prasad is the case of the defendant and, therefore, it was for - 6 - the defendant to prove this fact but the learned Court below placed wrong onus on the plaintiff to prove that there had been no partition. Here the presumption of jointness will not be attracted because the plaintiff is not praying for partition of the half property of Ramdhahi. The plaintiff is claiming for partition of the property of Ram Prasad for which the plaintiff is not required to plead the history. 12. The leaned counsel for the appellant further submitted that according to Order 18 Rule 1 C.P.C., the defendant pleaded the additional fact and prayed for dismissal of the plaintiff’s case on the basis of the additional fact, therefore, it was the burden of the defendant to have adduced evidence in support of the case of jointness between Ramdhani and Ram Prasad but the learned Court below on the ground that there is presumption of jointness decided the issue in favour of the defendants. 13. The learned counsel further submitted that there are overwhelming evidence on record oral as well as documentary in support of the fact that there had already been partition between branch of Ramdhani and Ram Prasad but the learned Court below has mis-construed the evidence and dismissed the plaintiff suit. Although, the jointness between the parties is admitted by the defendants. According to the learned counsel, the defendants claim that Ram Ajodhya, s/o Ramdhani executed a Will in respect of his properties in favour of defendant No.1 to 3. The defendants on the basis of the said will filed probate case. The widow of Ajodhaya, namely, Mungia Devi only objected the probate case. If the property of Ajodhya was joint then in that case, the defendants Nos.1 to 3 would have given citation to all the defendants including the plaintiffs also which is a strong circumstances to prove that there was partition between Ramdhani and Ram Prasad. The learned Court below also did not consider the intersee transaction between the two branches and also the fact that register ‘2’ was open separately in the name of Mungiya Devi and in the name of Ram Prasad separately. The - 7 - learned Court below also wrongly considered the effect of cess return which was in the name of two branches separately filed by the ex. landlord. 14. The learned counsel further submitted that so far the case of the intervener is concerned, the learned Court below has wrongly excluded the property from partition on the ground that he has got title and possession without considering the Judgment passed in earlier title suit which has been marked as (ext.8/i). In the said earlier suit, it has been held that plot No.289 belong to Ram Prasad and the case of Mukhlal was dismissed. The said finding will operate as resjudicata in this case. In the said suit, Mostt. Ugia, Ajodhya Prasad and defendant No.1 to 3 were defendants who filed joint written statement admitting the fact that there had already been partition between Ram Prasad and Ramdhani but the learned Court below failed to consider this fact also. According to the learned counsel, the learned Court below also failed to take into consideration that an area of 1.59 ¼ acres was transferred from ext.’15’ to ext. ‘15/A which are register ‘2’. Ext.’15/A is in the name of Mungiya Devi which were earlier in the name of Ajodhya Rai and wrongly the said area was recorded in the name of Ram Prasad in ext.’15’. The learned counsel further submitted that the learned Court below has wrongly given the finding that there had been no partition between Ramdhani and Ram Prasad on the ground that after 1916, the parties were purchasing the lands jointly and the rent receipt are obtained in joint names without considering the fact that the issuance of rent receipt jointly will not prove jointness and there is no bar that the persons who are separate cannot purchase jointly. So far the house property at Patna is concerned, the learned counsel submitted that the father of the plaintiff No.1, namely, Ram Prasad Gope had sold his half share in 1958 and the half share belong to Ramdhani Rai. Therefore, there was no question of inclusion of the said property arises. On these grounds, - 8 - the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff suit for partition be decreed. 15. On the other hand, the learned counsel appearing on behalf of the respondent submitted that there are overwhelming evidences on record in support of the fact that there was no partition between Ramdhani Gope and Ram Prasad Gope. The two branches always purchased the lands jointly and still there is rent receipt in the name of both parties. The parties are in joint cultivating possession of the property. The learned Court below has rightly considered all these evidences and has rightly found that there was no partition between two branches. The plaintiffs have intentionally not included the house and land property of Ram Prasad at Patna in the present suit and, therefore, the learned Court below has rightly held that the suit is bad for partial partition. The learned counsel further submitted that there is presumption of jointness in the Hindu family and, therefore, it was for the plaintiff to prove the fact that there had been partition between Ram Prasad and Ramdhani. Moreover, when both the parties adduced evidence, the onus to prove loses its importance. The learned Court below, therefore, rightly found that the plaintiffs failed to prove previous partition between Ram Prasad and Ramdhani, therefore, the widow of Ajodhya Prasad was a necessary party. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. 16. In view of the contentions of the parties, the points arises for consideration is as to whether there is unity of title between parties with regard to the suit property and whether there had been partition between Ram Prasad Gope and Ramdhani Gope or not and whether the suit is bad for non-joinder of Mungiya Devi and half property of Ramdhani and property of Patna? 17. According to the plaintiff, this partition suit was filed simply praying for partition of the suit property claiming 1/35th share. The genealogy has been - 9 - mentioned in plaint giving the details of Ram Prasad Gope only. The defendant No.1 to 4 filed contesting written statement alleging that the brother of Ram Prasad, namely, Ramdhani Rai died long ago in the sate of jointness. After his death, his son, Ajodhya Rai continued to be member of joint family who also died in jointness leaving behind his widow, Mungiya Devi. There was no partition between Ramdhani Rai and Ram Prasad Rai. At paragraph6, these defendants specifically stated that Ajodhya Rai had no issue and he had great love and affection towards defendant No.1 to 3 and his intention was that these defendants alone should be the onus of his properties after his death. He executed Will on 18.06.1967 in favour of these defendants specifically expressing his desire that after his death, his widow Mungiya Devi will maintain herself out of his properties but she will have no right to alienate and after her death, the defendant No.1 to 3 will be absolute owner. At paragraph 1`2, the defendants again specifically stated that the plaintiffs have left out from the plaint half of the lands over which the parties of the suit along with widow of Ajodhya Rai are in joint possession. Therefore, according to the defendants, it is now clear that the half of joint family property has not been included. Therefore, it is admitted fact that the plaintiffs filed the suit for partition of the half property only. According to the defendant, the other half of Ramdhani has not been included for partition and Mungiya Devi has not been made party. Therefore, the suit is bad for partial partition and bad for non-joinder of necessary party. The defendants never prayed for partition of the said half property. 18. According to the written statement of defendant No.12, Mostt. Ugia Devi, there had already been partition between Ramdhani Rai and Ram Prasad Rai in the year 1916. After death of Ajodhya Rai her widow became the owner of his property and she executed gift deed on 28.11.1973 in favour of wife of plaintiff No.1, namely, Shanti Devi. After death of Mungiya Devi, Shanti Devi is coming in - 10 - possession of the said properties. Therefore, according to the widow of Ram Prasad Gope, there had been partition between the two sons of Sumera Rai in the year 1916. 19. In view of the pleadings of parties, according to the defendant, the half property has not been included in the suit. The defendants claimed the said half property on the basis of Will executed by Ajodhya Devi in the year 1967 whereas according to the plaintiff, Mungiya Devi gifted the said property to the wife of plaintiff No.1 in 1973. The parties have adduced their respective evidences oral and documentary in support of their cases. P.W.1 is plaintiff NO.1, Bishundhari Prasad. IN his evidence, he has fully supported the case made out in the plaint. He has at paragraph 5 stated that there is no house and land at Patna. One house was their which belonged to Ram Chandra who was phuphura nephew of Ram Prasad. After death of Ram Chandra, Ramdhani and Ram Prasad both inherited half and half. Ram Prasad sold his half share in the said house. In the cross- examination at paragraph 10, this witness has clearly stated that there was partition in the year 1916 between Ramdhani and Ram Prasad. In support of the said partition, this witness has stated that he had filed the cess return. He has also stated that there was separate register-II opened in the name of both the brothers with respect to 1 acre 59 decimal. Now, there is no witness regarding the said partition of the year 1916. After the said partition both the branches purchased many lands jointly. At paragraph 20 of his cross-examination, he has stated that Ram Prasad and Ramdhani had 79 decimal land. Out of the same, Ram Prasad had sold 39 decimal. At paragraph 22 of his cross-examination, it appears that this witness was suggested that the land of branch of Ajodhya was given in gift in the name of wife of this witness which is collusive and false and also a suggestion was given that on the gifted land, neither the donor had possession nor the donee, i.e., wife of this witness came in possession. It may be - 11 - mentioned here that so far this suggestion given by the defendants in the cross- examination clearly indicates that Mungiya Devi was also not in possession of the gifted land and on the basis of gift, Shanti Devi never came in possession. Therefore, according to the defendants at one place, they are saying that Mungiya Devi is in possession of the half share of Ajodhya and unless she is made party, the suit is bad for non-joinder of party. At second place, their defence is that she was never in possession of the property which she gifted to Shanti Devi. In such view of the matter, it is admitted that definite property has been gifted to the wife of defendant No.1. This witness has proved register-II which has been marked as ext.’15’ which is in the name of Mungiya Devi and ext. ‘15’/A which is register-II in the name of Ram Prasad. At paragraph 28 of his cross-examination, a suggestion has been given to the witness that according to the convenience, the parties were separate and the register-II has been obtained separately in the name of two branches. 20. P.W.2 has stated that Mungiya had separate land and this witness was cultivating the land of Mungiya Devi. He also cultivates the land of Ram Prasad. There had been partition between branch of Ramdhani and Ram Prasad. Other witness appears to be formal in nature. 21. D.W.1 is the defendant No.1. At paragraph ‘2’, he has clearly stated that the land of Ajodhya’s share has not been included in this suit. The patna house is also of Ram Prasad which has not been included. At paragraph4, he stated that Mungiya Devi had no right to execute gift deed and the gift deed is collusive. Shanti Devi never came in possession. The Rehan deed is also collusive. In cross-examination at paragraph2, he has stated that in the suit in the Court of Munsif, he had filed the rent receipt which was in the name of Ajodhya and Ram Prasad separately. He has admitted that the rent receipt is separate in their name and register-II was also separate. At paragraph 13, he has - 12 - admitted the fact that Ram Prasad has sold the land at Patna measuring about 10- 11 kattha. When suggestion was given that Ram Prasad has sold 39 decimal, he expressed his inability to say as to whether 39 decimal was sold. He has admitted that Ram Prasad and Ajodhya were ‘Sarhu’. At paragraph 15, he has again admitted that the Patna land was not self-acquired property of Ram Prasad. Earlier, the said land belong to Ram Chander. Ram Chander was brought up by Ram Prasad and on the death of Ram Chander, the land and house was inherited by Ram Prasad. At paragraph 16 of his cross-examination, when a suggestion was given hat there was partition between Ramdhani and Ram Prasad in 1916, he stated that he do not remember. He has also admitted that there is 8 to 10 cases pending between plaintiff NO.1 and this witness. D.W.2 has stated that there had been no partition between Ramdhani and Ram Prasad. The evidence of D.W.3 is also same as that of D.W.2. The other witness are not on this point. These are the oral evidences adduced by the parties. 22. We have seen above that so far the case of the plaintiff regarding partition of the suit property is concerned, the defendants have admitted the said fact. In view of Section 101, the plaintiff is required to prove the existence of this fact that the parties