FIRST APPEAL No.239 OF 1996 Against the judgment and degree dated 28.02.1996 passed by sri Harideo Prasad, the learned Ist subordinate Judge, Aurangabad in Partition Suit No. 145/93 BAJRANGI SINGH-----------------------------------------------(Appellant) Versus SUKHDEO @ KARMAN SINGH & ORS-------------------------------(Respondents) For the appellant: Mr. Dhrub Narayan, Sr. Advocate Mr. Jitendra Pd. Singh, Advocate Mr. Abhishek Advocate Mr. Prabhat Kumar Dipak, Advocate For the respondents :Mr. Deo Govind Prasad, advocate Mr. Ashok Kumar Dubey, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T Mungeshwar Sahoo,J. This First Appeal is directed against the judgment and degree dated 28.02.1996 passed by sri Harideo Prasad, the learned Ist subordinate Judge, Aurangabad in Partition Suit No. 145/93 dismissing the plaintiff/appellant’s suit for partition with regard to the suit property measuring 15 Acres 45 decimals of Khata No. 11. 2. The plaintiff/appellant filed the aforesaid Partition Suit No. 145/92 on facts inter alia that Dasain Gope was the common ancestor. A genealogical table has been given in Paragraph-2 of the plaint. According to the 2 genealogy, Dasain Gope had four sons; namely; Bishundhari Gope, Nemdhari Gope, Julumdhari Gope and Tilakdhari Gope. Bishundhari Gope has three sons, namely; Somaru Yadav, Mangru Yadav and Rambrikchh Yadav. Somaru Yadav had a son, Halkhori Yadav who had a son, Prabhu Singh who is defendant No. 2. It may be mentioned that Bishundhari and his three sons and Halkhori are dead. The son of Mangru and grandson of Rambrikchh are defendants. 3. The second son of Dasain Gope, namely, Nemdhari Gope had two sons, Raghunandan Yadav and Ramdeo Yadav. Raghunandan Yadav died leaving behind Sukhdeo @ Kariman who is defendant No. 1. Ramdeo died issueless. The third son of Dasain Gope, Julumdhari Gope had a son, Bishu Gope who died leaving behind Raghurai Singh who was original defendant No. 7. During pendency of suit, he also died. The fourth son, Tilakdhari Gope had a son, Chulhai Gope and Bajrangi Singh, the plaintiff/appellant is the son of said Chulhai Gope. 4. According to the plaintiff’s case, the suit property is recorded in the old survey record of right in the name of Dasain Gope. The three sons of Dasain Gope had separate Khatiyans in their names but no separate Khatiyan was recorded in the name of Tilakdhari Gope. There had been no partition by meets and bounds between the sons of 3 Dasain Gope and till date, the parties are cultivating according to their convenience. 5. The further case is that except the suit land, the other ancestral property had already been partitioned, and therefore, the properties are no included in this suit. 6. The further case of the plaintiff is that Raghunandan Gope was Karta and a clever man and so he had all the papers and was managing the family. By playing fraud, he prepared some documents. In 1946-47, a Rent Suit was filed being Rent Suit No. 2110 of 1946-47 and according to that Rent Suit also, the land was joint. The suit lands are not of Raghunandan otherwise no dispute would have arisen as would be evident from Title Suit No. 29 of 1956. The judgment and decree passed in that Title Suit No. 29 of 1956 is wrong and the court exceeded his jurisdiction in passing the judgment, as such, the judgment is void and not required to be set aside by filing suit. The parties had not signed the award and wrong fact was placed before the court. The documents in favour of the defendant No. 1 are hit by Benami Transaction Act. By relinquishment deed, no title can be transferred. 7. The plaintiff’s further case is that his father, Chulhai Gope had no legal right to sell the property of Khata No. 11 because after death of Dasain Gope, all the four sons of Dasain Gope had 1/4th share in it. Many litigations 4 are going on between the parties and therefore, it is necessary for partitioning the suit property. 8. The defendant No. 1 Sukhdeo Singh appeared and filed a contesting written statement. 9. The defendant No. 1 in the written statements besides taking various legal pleas mainly contended that earlier this very plaintiff filed Title Suit No. 29 of 1956 in which by the intervention of the court, punches were appointed and they gave award which was confirmed by the court. In the said suit, the plaintiff had admitted the fact that his father had sold the land of Khata No. 11 to Ram Bhajan Gope and said Ram Bhajan Gope in turn registered a relinquishment deed in favour of this defendant No. 1 on 11.07.1949 and since this defendant No. 1 is coming in cultivating possession. After the decree passed by the court below, the plaintiff did not file appeal against the judgment and decree passed in Title Suit No. 29 of 1956 and, therefore, the said judgment and decree has attained finality. 10. The further case of the defendant No. 1 is that as stated by the plaintiff, it is the fact that Dasain Gope had four sons and all of them were separate since prior to cadastral survey and they have no concern with each other and also they had no concern with the land of Dasain Gope recorded in his name in cadastral survey. The defendant submitted 5 that on the death of Dasain Gope, the lands of Khata No. 11 was inherited by Tilakdhari Gope, the grandfather of the plaintiff. At the time of cadastral survey, Tilakdhari Gope, the grandfather of the plaintiff was minor; therefore, he was joint with his father, Dasain Gope. So, the lands of Khata No. 11 were recorded in the name of Dasain Gope. The defendant further stated that the defendant No. 1 has already sold the land to Baldeo Singh and Ashok Kumar Singh by registered sale deed. 11. This defendant denied that Raghunandan Gope was Karta of the family. The plaintiff in Title Suit No. 29 of 1956 did not include the property sold by his father and now after 37 years, the plaintiff cannot be allowed to challenge the decree passed in Title Suit No. 29 of 1956. 12. The defence of defendant No. 7 also filed contesting written statement. The defendant No. 7 is in the same line as that of defendant No. 1. 13. In view of the pleadings of the parties, the learned court below framed five issues. While deciding issued No. 3, i.e. whether the parties had got unity and title in the suit property; the learned court below came to the conclusion that regarding the lands of Khata No. 11, the parties have no unity of title and possession over the same. Since this was the main finding, the suit was dismissed. 14. The learned counsel for the appellant submitted 6 that the learned court below has wrongly dismissed the plaintiff suit for partition. The decree passed in Title Suit No. 29 of 1956 is a nullity because by the decree, no title had passed to anyone. According to learned counsel, the award given by the punches was not registered and, therefore, the unregistered award would not have been made the rule of the court. Moreover, the decree passed by the court below was also not registered. According to the learned counsel, the award partitioning the property should have been registered. But since it was not registered and the decree is passed on non-registered award, therefore, it is a void decree and cannot be looked into. 15. The learned counsel further submitted that in Hindu Law, the family is presumed to be joint and therefore, the onus was on the defendant/respondents to show that there had been partition between the parties. In this case, the defendants have failed to prove the fact of previous partition regarding lands of Khata No. 11. Therefore, the learned court below would not have dismissed the suit for partition. 16. On the otherhand, the learned counsel appearing on behalf of the respondents submitted that it is the case of the plaintiff that at the time of cadastral survey, all the major three sons were separate from their father, Dasain Gope. Therefore, in the cadastral survey, separate Khatiyans were 7 recorded in their name with respect to the lands on which they were in possession. In the partition, because this Khata No. 11 measuring about 15 acres and 45 decimals fell in the share of Tilakdhari, the grandfather of plaintiff and since Tilakdhari was minor, the total land of Khata No. 11 was recorded in the name of Dasain Gope separately. The father of this plaintiff, Chulhai Gope sold the property comprised within Khata No. 11 as far back as in the year, 1931. Only 3 acres 54 decimals remained. Therefore, the plaintiff filed Title Suit No. 29 of 1956 regarding the land of Khata No. 11 measuring only 3 acres 54 decimals. The said suit was decreed in terms of the award of the punches. In the present case, the plaintiff has filed this suit for partition including the entire land of Khata No. 11 measuring 15 acres 45 decimals in which the lands sold by his father, Chulhai Gope in the year, 1931 has also been included. Considering the facts of the case, the learned court below has rightly dismissed the plaintiff’s case. 17. In view of the above rival contentions of the parties, the points arise for consideration in this appeal are; (i) As to whether the plaintiff is entitled for the partition of his share in the suit property and (ii) whether he has got unity of title and possession over the suit property? F I N D I N G S 18. To prove his case, the plaintiff has examined as 8 many as 10 witnesses. P.W. 1, Ramashish Ram has only stated one line that there had been no partition between the parties. P.W. 2 Ram Lakhan Singh has stated about the genealogy and stated that the parties are cultivating the suit land according to their share. Therefore, this witness clearly admits at Paragraph-1 of his examination-in-chief that the parties are cultivating lands separately. P.W. 3, Brahamdeo Singh has stated that there had been no partition of the land of Khata No. 11. P.W. 4, Madan Mohan Prasad Singh is formal and has proved Ext-1 series, Zamindari receipts. P.W. 5 has also only stated that there had been no partition by meets and bounds of the suit land. P.W.6 has proved the written statement of the defendants filed in Title Suit No. 29 of 1956 which has been marked as Ext-2. The Khatiyan has been marked as Ext-3 with objection. 19. P.W.7 has proved summons of Rent Suit of 1946, the application of the said Rent Suit which have been marked as Exts-4 to 7. P.W. 8 has proved the decree in Rent Suit. P.W.9 is formal in nature. P.W. 10 is the plaintiff himself. In his evidence, he has stated about the genealogy and also stated that all the suit lands are joint and there had been no partition. He has also stated in his evidence that the sale deeds of the year, 1931 and the relinquishment deed of the year, 1936, all are illegal and have been forged. He has also denied in his evidence and stated that his father has 9 not sold the property. 20. The learned counsel for the appellant placed Ext-2 i.e. written statement filed by Raghunandan and others in Title Suit No. 29 of 1956 and submitted that at Pareagraph- 12 of the said written statement, the defendant had admitted that there was no Pakka Bantwara by meets and bounds. On the basis of this, the learned counsel submitted that it was from the defendants to show that there had been partition thereafter, but they have miserably failed to do so. So far this contention is concerned, from perusal of the statement made in Paragraph-12, in Ext-2, it appears that it is stated that there was no Pucca Bantwara by meets and bounds at the time of survey operation but the sons were separately cultivating the lands. Since there was great inequity in the proportion of the lands which were separately entered in the name of the sons of Dasain and Nemdhari to ensure good and harmonious relations, Dasain Gope relinquished his interest in favour of Nemdhari witn a view to equalize the share. This happened in one or two years after survey and since then, Nemdhari is in possession. 21. On the otherhand, from perusal of the plaint of Title Suit No. 29 of 1956 which has been marked as Ext-E, it appears that the plaintiff Bajrangi himself has clearly admitted at Paragraph-5 that the three sons of Dasain Gope were separated from their father, Dasain Gope and survey 10 Khatiyans were prepared in their names separately. Tilakdhari Gope remained joint with his father, Dasain Gope, so a separatge Khatiyan was prepared in the name of Dasain Gope. After death of Dasain Gope, the land of Khata No. 11 devolved upon Tilakdhari Yadav who died leaving behind Chulhai Yadav who is father of this plaintiff. Chulhai Yadav came in possession of the entire land of Khata No. 11. He sold 9 acres 79 decimals in favour of Nemdhari Yadav on 08.09.1931. Subsequently, Nemdhari Yadav further purchased 2 acres 125 decimals in the name of Ram Bhajan Yadav and thereafter, only 3 acres 54 decimals remained in Khata No. 11. After death of Chulhai, the plaintiffs are coming in possession of the said 3 acres 54 decimals which was the subject matter of the suit. 22. The defendants have proved Ext-B/1 the sale deed executed by Chulhai Gope in favour of Ram Bhajan Gope. From perusal of the said Ext.-B/1, it is apparent that the father of the plaintiff has admitted that he was selling the property which he got in partition. This sale deed is of the year, 1931. Ext-C is another sale deed of the year, 1931 executed by Chulhai Gope. 23. The learned counsel for the appellant submitted that the father only could not have sold major portion of the suit land because the plaintiff had half interest in the property as it was ancestral property. So far this contention 11 is concerned, it may be mentioned here that sale by father, Chulhai Gope was in the year, 1931 when the plaintiff was minor. As has been stated that the date of birth of plaintiff is 1928, after sale of the property by Chulhai in the year, 1931, Chulhai died in 1935-36. It is well settled that the father for legal interest can sell the property of the minor and if the minor wants to challenge the sale deed, then after attaining majority, he should have filed the suit for setting aside the sale deed. It is also well settled that the sale by legal guardian is voidable and not void. Therefore, on attaining of majority, the plaintiff could have filed the suit for declaring the sale deed as void. In the present case, instead of filing suit for avoiding the sale deeds executed by his father, he admitted the sale deeds executed by his father and filed Title Suit No. 29 of 1956 excluding the property sold by his father. In other words, till filing of this present suit for partition, the plaintiff was admitting the sale deed executed by his father. Now, therefore, the plaintiff cannot be allowed to say that the father could not have sold the share of the minor also. The learned counsel for the appellant submitted that the award of the Punches was not registered. It may be mentioned here that the award was made by the Punches on the intervention of the court. Therefore, the punches by the award only recognized the existing title of the parties. In a decision reported in AIR 2006, (SC) 1249 (N. Khosla vs 12 Rajlaxmi), the Hon’ble Supreme Court held that the declaration of pre-existing rights which neither creates any right nor extinguishes any right in presentine or in future, so award does not compulsorily required registration under the Registration Act. Moreover, the award was made rule of the court as far back as in the year, 1957. Even if the award was illegal, now in this present suit, after such a long period, the plaintiff cannot be allowed to challenge the award. If the plaintiff was aggrieved, he could have filed appeal or revision as the case may be according to law, but in this Partition Suit, the plaintiff cannot be permitted to say that the judgment and decree passed in Title Suit No. 29 of 1956 is a nullity. 24. From the above facts, it appears that in the year, 1956, the plaintiff admitted that after the sale of the lands by his father, only 3.54 acres remained in Khata No. 11. In that suit, therefore, the plaintiff did not include the sold properties. After such a long period, in the present suit, for partition, the entire lands of Khata No. 11 have been included. It is the case of the plaintiff in the plaint itself of Title Suit No. 29 of 1956 that the three sons of Dasain Gope, were separate from their father during Cadestral Survey, and, therefore, they were recorded in separate Khatiyan. Now, therefore, according to the plaintiff himself for more than a century, the parties are cultivating the lands 13 according to their share. In this case, thee is no documentary evidence affecting partition. It is submitted on behalf of the appellant that emphasis should not be given on the pleadings of the parties but substance is to be looked into. The learned counsel submitted that the parties were cultivating the lands separately but there was no partition by meets and bounds. So far this submission is concerned, if accepted then also it can very well be presumed that there had been partition between the parties. 25. In a decision reported in 1971, Patna 215 (Arjun Mahto and others vs. Monda Mahatain and others), the Division Bench of this court had held at Paragraph-7 as follows: 7. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. In the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a 14 case where the evidence is not obliterated by passage of time. This principle has been expounded by the Supreme Court in Bhagwan Dayal v. Mst. Reoti Devi AIR 1962 SC 287. When no contemporaneous documents are available, the question whether the parties remained united or separate is to be decided on the facts of each case. Relying in a decision in Mukhram Rai v. Chandradeep Rai AIR 1936 Pat 68. Mr. Majumdar strenuously argued that where parties have been in possession of and exercising rights of ownership over separate blocks of land for a long time, the court might well presumed that these lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude there being repartitioned. Fazl Ali J., as he then was relying on a Privy Council decision in Yellappa Ramappa v. Tipanna, ILR 53 Bom 213 – “AIR 1929 PC 8) has observed: 26. In the present case, the parties have been in possession and have been exercising rights of 15 ownership over separate blocks of land for such a long time and in such a manner that a Court might well presume that these lands have been already divided and the rights of the parties defined in regard to them in such a manner as to preclude there being repartitioned.” In the said decision, the Division Bench has also held at paragraph-13 as follows: 13. Separation in food and residence for a long time among the brothers of a Hindu family. Independent transactions of property, separate possession and enjoyment of properties, are by themselves not conclusive to prove the partition but the cumulative effect of such facts may show that there had been partition between the brothers during their lifetime. In this connection, it is profitable to refer to the decision of the Privy Council in Gangabai v. Fakirgowda Somayyagowda. AIR 1930 PC 93. 27. In the present case, it is admitted that the 16 parties are in separate possession since cadastral survey of record of right. There are independent transactions since long as has been admitted that father of plaintiff sold property in the year, 1931. It is admitted fact that father of plaintiff sold some land to Nemdhari who is defendant/respondent. Therefore, there is inter se transaction between the parties. In a decision reported in 1977 Pat 59, this Court has held that inter se transaction between the parties is a strong circumstance to hold that there has been partition between the parties. 28. In view of above documentary evidences, the defendants have been able to prove previous partition. The oral evidence of plaintiffs stands fortified by documentary evidences. 29. In view of my above discussions, I come to the conclusion that there had already been partition of the suit property between the parties earlier. I also find that the plaintiffs have failed to prove their joint title and joint possession over the suit property. I, therefore, find that the plaintiffs are not entitled to a decree for partition. Both the points are answered in favour of defendants. The findings of the learned court below on these points are hereby confirmed. 17 30. In the result, I find no merit in this First Appeal and accordingly, it is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. PATNA HIGH COURT The 27th of April, 2010 A.F.R./AKV (Mungeshwar Sahoo,J.)