APPEAL FROM APPELLATE DECREE No.60 OF 1989 **** (Against the judgment and decree dated 02.01.1989 passed by Sri Abinashi Sharan Lal, 2nd Additional District Judge, Saran at Chapra in Title Appeal No.18 of 1980 setting aside the judgment and decree dated 19.11.1979 passed by Sri Kedar Nath Sah, Munsif 1st, Chapra in Title Suit No.146 of 1972) **** 1. Ramdeo Chaudhary son of Bhardul Chaudhary @ Ram Narayan Chaudhary. 2. Suresh Chaudhary 3. Dhanesh Chaudhary Both minor sons of Ramdeo Chaudhary through Ram Deo Chaudhary father guardian and next friend. All residents of Mohalla Dahiawan, P.O. Chapra, P.S. Chapra Town, District Saran. ….Plaintiffs-Respondents 1st set-Appellants. Versus 1. Mathura Chaudhary 2. Sukdeo Chaudhary 3. Sudama Chaudhary 4(A) Manju Devi wife of Late Sheojee Chaudhary 4(B) Laddu Chaudhary 4(C ) Kudu Chaudhary 4(D) Chhote Chaudhary Minor sons of Late Sheojee Chaudhary represented through natural guardian mother and next friend. Nos.1 – 4(D) residents of Mohalla Dahiawan, P.O. Chapra, P.S. Chapra Town, District Saran. ..Defendants-Respondents 2nd set- Respondents 1st set. 5. Basdeo Chaudhary son of Late Ram Kishun Chaudhary, resident of Mohalla Dahiawan, P.O. Chapra, P.S. Chapra Town, District Saran. ...Defendant-Respondent 3rd set-Respondent 2nd set. 6(A) Uma Devi 6(B) Malti Devi daughters of Late Mahabir Sah, resident of Mohalla Dahiawan, P.O. Chapra, P.S. Chapra Town, District Saran. 7(A) Kameshwar Prasad 7(B) Chhotan Prasad Sons of Late Smt. Kushum Kumari Devi, both are of village Manjhi, P.O. and P.S. Manjhi District Saran, at present resident of Mohalla Dahiawan, P.O. Chapra, P.S. Chapra Town, District Saran at Chapra. ….Defendants-Appellants-Respondents- 3rd set. 2 For the appellants : M/s Mahesh Nr. Prasad and Ved Prakash Srivastava, Advocates. For respondent nos.7(A) & 7(B) : Mr. Ram Suresh Roy, Sr. Advocate with M/s Anant Kumar Bhaskar, Sanjay Kumar Jha and Dr.Rajesh Kumar Singh, Advocates. P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This second appeal has been filed by the plaintiffs-Respondents- appellants challenging the judgment and decree of the court of appeal below. 2. The matter arises out of Title Suit No.146 of 1972 which was filed on 28.09.1972 by the plaintiffs-appellants with respect to a house with land measuring 2 katha 9 dhurs bearing Holding No.107, Circle No.16, Ward No.4 situated in Mohalla Dahiyawan within P.S. and Town of Chapra in the district of Saran, claiming the following reliefs:- (i) A decree of partition of half share of the plaintiffs in the suit property and for consequential orders. (ii) Cost of litigation. (iii) Any other relief to which the plaintiffs are entitled. 3. The suit was contested only by defendant nos.7 and 8 who were purchasers from defendant no.6 by registered deeds dated 30.09.1972, 26.10.1973 and 12.07.1974 (Exts.A-II series) claiming that the plaintiffs had no concern with the suit property which belonged to Sampatia widow of Dalip Choudhary who was the grand mother of defendant no.6. Considering the pleadings of the parties the following issues were framed by the trial court for deciding the title suit:- (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got any valid cause of action for the suit? (iii) Is the suit hit by the principles of ouster and adverse possession? (iv) Is there unity of any title and possession between the parties? 3 (v) Is the story of oral sale as propounded by defendant nos.6 to 8 is correct or the story propounded by defendant nos.1 to 5 is correct? (vi) Whether the plaintiffs are entitled to a decree for partition, if so, to what extent? (vii) To what relief or reliefs, if any, are the plaintiffs entitled? 4. On the basis of the aforesaid pleadings, evidences were led and arguments were placed on behalf of both the parties, whereafter Munsif-I, Chapra decreed the suit on contest with cost vide his judgment and decree dated 19.11.1979 after arriving at the following findings: (a) Since the defendants had denied the plaintiffs’ case and had claimed that the suit property belonged to Sampatia wife of Dalip Choudhary who had acquired the land by purchase etc. whereafter her name was also entered in Mutation Records as owner, the initial onus is on the plaintiffs to prove that the property in question is ancestral property not exclusively belonging to Sampatia. (b) Since the plaintiffs have claimed and proved that the property was purchased by Babulal Choudhary who left behind two sons Jagarnath Choudhary (grand father of plaintiff no.1) and Dalip Choudhary (husband of Sampatia) who had half interest each in the suit properties, the onus has shifted on defendant nos.7 and 8 to prove that the property exclusively belonged to Sampatia wife of Dalip Choudhary half by inheritance from her husband and half by purchase from the plaintiffs’ ancestor in the year 1915 and also to prove that the said Sampatia continued in possession till her death and after her death defendant nos.1 to 6 were coming in possession till it was sold to defendant nos.7 and 8. (c) There is absolutely no evidence to prove the alleged oral sale of half of the suit property by the ancestor of the plaintiffs to Sampatia. (d) If at all defendant nos.7 and 8 have purchased only half share in the property and they had purchased litigation because their alleged 4 transferor, namely defendant no.6 had no right to sell the suit property more than his 1/4th share. (e) Although the defendants have taken the plea of adverse possession and ouster against the plaintiffs, but they failed to establish the same. (f) There is unity of title and possession between the parties except defendant nos.7 and 8 and as such the plaintiffs are entitled for partition to the extent of half in the north of the suit property. (g) The suit as framed is maintainable and the plaintiffs have valid cause of action for the suit and are entitled to the reliefs sought for. 5. Against the aforesaid judgment and decree of the trial court defendant nos.7 and 8, namely Mahabir Sah and Smt. Kusum Kumari Devi filed Title Appeal No.18 of 1980. After considering the pleadings of the parties the learned court of appeal below formulated following points for deciding the title appeal:- (i) Is there any unity of title and unity of possession among plaintiffs and defendant nos. 1 to 6 over the suit property at the time of filing of the suit? (ii) Is the suit property homestead land within the provisions of section 4 of the Partition Act for giving right to respondent nos.4 to 8? 6. After considering the pleadings and evidence of the parties as well as the arguments adduced on their behalf, the Additional District Judge-II, Saran allowed the title appeal on contest vide his judgment and decree dated 02.01.1989 setting aside the judgment and decree of the trial court and rejecting the claim and suit of the plaintiffs after arriving at the following findings:- (a) The plaintiffs in paragraph-12 of their plaint have claimed that northern portion of the suit land which was given in their possession merely as mutual arrangement for convenience among the co-sharers, but there was no partition by metes and bounds. (b) Written statement of defendant nos.1 to 5 read with Exts.A-II registered sale deed of 1972 shows that the claim of defendant nos.1 to 5 cannot be held as truthful assertion without corroboration, hence the said written statement does not support the plaint of the suit. 5 (c) Article 328 of the Mulla’s Hindu Law directly hits the present partition suit because the main principle laid down that when a partition is admitted or proved, the presumption is that all the property was divided, but in the present case the plaintiffs have not been able to prove that the suit property was not divided in the earlier partition between Dalip Choudhary and Jagarnath Choudhary about 70 years back. (d) Learned Munsif erred in holding that the suit property was not available for partition among ancestors of the plaintiff and defendant nos.1 to 6 as there is no cogent reason to support such plea. (e) In a family partition it is not necessary that each one must get proportionate quantity according to share in each property. (f) In a family partition of 70 years ago as claimed by the plaintiff himself in his deposition neither the entire property involved in the partition nor their value and the manner of partition are known. (g) Bishun Choudhary sold the suit property to Basudeo and Shanti who in their turn sold to Kusum Kumari Devi by registered deed dated 26.10.1973 and 12.07.1984 respectively, whereas Bishun Choudhary executed usufructuary mortgage deed in favour of Raghunath Singh on 05.11.1971 and hence the said Raghunath Singh must be in possession of the said property either by himself or through his tenant and hence section 4 of Partition Act is not applicable in the instant case. (h) The present suit property is not ancestral residential house and on that ground also section 4 of the Partition Act is not applicable in the present litigation. (i) The judgment of the trial court cannot be sustained on the basis of evidence on record. 7. Against the aforesaid judgment and decree of the lower appellate court the plaintiffs filed the instant second appeal which was admitted on 06.11.1989 on the following substantial questions of law:- 6 (i) Whether the view taken by the court of appeal below that the suit is not maintainable, on account of partial partition is erroneous in law? (ii) Whether the court below erred in not allowing the claim made by the appellants under section 4 of the Partition Act? 8.However, when hearing in the instant second appeal started on 03.03.2010, learned counsel for the appellants raised another substantial question of law which is as follows:- (iii) Whether the learned court of appeal below has failed to take notice of section 52 of the Transfer of Property Act? 9.After hearing learned counsel for the parties and perusing the materials on record, it is quite apparent that admittedly Babulal Choudahry was the common ancestor of both the parties. The said Babulal Choudhary left behind two sons Jagarnath Choudhary and Dalip Choudhary out of whom Jagarnath Choudhary had a son Ram Narayan Choudhary @ Bhardul Choudhary, who died in the year 1959 leaving behind a son Ramdeo Choudhary who was plaintiff no.1, whose two children were plaintiff nos.2 and 3. On the other hand, Dalip Choudhary left behind a widow Sampatia and two sons Ram Kishun Choudhary and Bishun Choudhary, out of whom Ram Kishun Choudhary died in the year 1967 leaving behind a son Basudeo Choudhary who was defendant no.6 and his wife was Shanti Devi. The other son of Dalip Choudhary, namely Bishun Choudhary was defendant no.1 and his four children were defendant nos.2, 3, 4 and 5 of the title suit. 10. So far question no.(i) raised by the appellants (plaintiffs) is concerned, it was argued on their behalf that plaintiff no.1 while deposing as PW.1, had stated in paragraph-4 of his deposition that partition in the family had taken place about 70 years back which on calculation would come to 1909. It was also claimed that the suit property was purchased by Babulal Choudhary by registered deed dated 27.02.1913 (Ext.1), i.e. much after the aforesaid partition and hence the said purchased property was not available with the family at the time of earlier partition and thus there is no question of any partial partition, nor the claim of the plaintiffs is barred on that account. 11. On the other hand, learned counsel for the respondents argued that from a reading of the plaint it is quite apparent that the plaintiffs had claimed that partition 7 took place after purchase of the suit property by Babulal Choudhary on 27.02.1913 (Ext.1), but there is nothing in the pleading why the suit property was left out and was not included in the partition between members of the family. It was also argued that when the plaintiffs had claimed that Bishun Choudhary got nakhrush land, there is no question of getting the house, as it is nowhere stated that there was any house in which the family of Bishun Choudhary was residing. 12. It is an admitted fact that the original owner of the suit property was Babulal Choudhary, who had two sons Jagarnath Choudhary and Dalip Choudhary out of whom Jagarnath Choudhary left behind a son Ram Narayan Choudhary (ancestor of the plaintiffs), whereas Dalip Choudhary left behind two sons Bishun Choudhary (defendant no.1 and father of defendant nos.2 to 5) and Ram Kishun Choudhary (father of defendant no.6). It is further admitted that the family of the parties to the suit was having extensive properties and that the suit property was purchased by the said Babulal Choudhary from the admitted original owner vide registered deed of sale dated 27.02.1913 (Ext.1) and also that there was partition between the family with respect to all the joint family properties except the property involved in the instant suit. Now the question to be decided is whether the partition in the family had taken place before the said purchase dated 27.02.1913 or after the said purchase and as to what would be the effect of partition if it had taken place after the aforesaid purchase. 13. It will be interesting to note that from the pleadings of the parties it is quite apparent that none of them claimed that the suit property was joint family property, as the plaintiff in paragraphs-9 and 10 of the plaint had stated that the suit house (Schedule-I) was acquired by Babulal Choudhary, but never partitioned by metes and bounds. Similarly defendant no.6 in paragraph-16 of his written statement had stated that Schedule-I property was self acquired property of Sampatia and was never joint and simultaneously in paragraph-17 of his written statement defendant no.6 had also raised the plea of partial partition. Similarly the main contesting party defendant no.8 in her written statement had specifically stated that Schedule-I property was never joint family property. The said pleadings were also supported by their evidence. Thus on the basis of the aforesaid pleadings and evidence of the 8 parties, it is quite apparent that the suit property was not purchased by the joint family, rather it was purchased by Babulal Choudhary independently. 14. Furthermore, from the respective claims of the parties it is quite apparent that no date of partition of the joint family property has been mentioned by any of them nor there is any evidence to show that the partition had taken place after purchase of the suit property vide registered sale deed dated 27.02.1913 (Ext.1). In these circumstances, the specific statement of plaintiff no.1 while deposing as PW.1 that the partition of the joint family property had taken place about 70 years ago, has to be considered specially when there is no evidence to contradict it. The said deposition having been made in the year 1979, the partition according to the said witness had taken place about the year 1909. There is no material at all to disprove the said statement, hence it can safely be held that the joint family property was partitioned between members of the family about the year 1909 and much thereafter in 1913 the suit property was purchased by Babulal Choudhary independently by Ext.1. 15. The sale deed in question dated 27.02.1913 (Ext.1) is an admitted document, which clearly shows that Babulal Choudhary had purchased the suit property from its original owner out of his own money. In the aforesaid facts and circumstances it is quite apparent that the suit property was exclusive property of Babulal Choudhary and only after his death it devolved upon his two sons Jagarnath Choudhary (grand father of plaintiff no.1) and Dalip Choudhary (father of defendant no.1). Hence the plaintiffs who were the descendants of Jagarnath Choudhary had ½ share in the suit property, whereas Dalip Choudhary had ½ share which devolved upon the branches of his two sons equally according to which defendant no.1 and defendant no.6 got 1/4th share each. In these circumstances, the heirs of Dalip Choudhary had no right or title to execute any deed with respect to the suit property exceeding their respective shares. 16. Furthermore, since the defendants had contested the plaintiffs’ case claiming that the suit property belonged to Sampatia the widow of Dalip Choudhary, who had acquired the land, half by inheritance from her husband and half by purchase, the initial onus is on the plaintiffs to prove that the property was purchased by Babulal Choudhary as claimed by the plaintiffs and when the plaintiffs sufficiently prove their 9 claim, onus would shift upon the said defendant nos.7 and 8. In the instant case the plaintiffs discharged their onus by proving that the suit property was purchased and remained in the name of Babulal Choudhary who left behind two sons as mentioned above. But thereafter defendant nos.7 and 8 could not prove by any material whatsoever that Sampatia inherited half of the suit property from her husband Dalip Choudhary when the said Dalip Choudhary had left behind two sons as his heirs and legal representatives. Furthermore, the aforesaid defendant nos.7 and 8 miserably failed to prove by any valid material that Sampatia ever orally purchased the remaining half of the suit property from the ancestor of the plaintiffs in 1915. In the said circumstances the said Sampatia had no absolute right, title or interest in the suit property and hence she cannot legally transfer the entire suit property to defendant no.6 and any such transfer made by her cannot legally affect the share of the plaintiffs. In the said circumstances the purchase made by defendant nos.7 and 8 cannot be held to be valid and legal as their transferor, namely defendant no.6 had no right or title to sell more than his 1/4th share in the suit property. 17. Furthermore, the defendants have miserably failed to prove their pleading of plaintiffs’ ouster by any material whatsoever. So far the plea of adverse possession is concerned, the same is not applicable in the facts and circumstances of this case when unity of title and possession with respect to the suit property has already been fully proved and also in view of the settled principle of law that possession of one co-sharer shall be deemed to be possession of all the other co- sharers. 18. So far question no.(ii)raised by the appellants with respect to section 4 of the Partition Act 1893 is concerned, it is nowhere stated in the pleadings that any of the parties were residing in the suit house with their family. The plaintiffs in pargraph- 12 of the plaint had stated that Bishun Choudhary got nakhrush land which cannot be termed as a house. Furthermore, neither the said issue was framed by the trial court nor any evidence was led with respect thereto. However, only on 26.08.1988 sons of Bishun Choudhary (defendant no.1) filed such a petition in the title appeal and hence in these circumstances, section 4 of the said Act is not applicable to the present litigation. 10 19. So far question no.(iii) raised by the appellants with respect to section 52 of the Transfer of Property Act 1882 is concerned, it is not in dispute that the suit, out of which this second appeal arises, was instituted by the appellants (plaintiffs) on 28.09.1972, whereas defendant no.6 had sold the suit property to defendant nos.7 and 8 by registered deeds dated 30.09.1972, 26.10.1973 and 12.07.1974 (Exts.A-II series), i.e. during the pendency of the suit. Hence, the said sale deeds would not affect the claim of the plaintiffs, as the party succeeding would get the share to which he is entitled and no harm would accrue to anyone if the issues are decided in his favour. 20. In the aforesaid circumstances, it is quite apparent that the plaintiffs had validly raised the first question which is a substantial question of law fully supported by the pleadings and evidence of the parties and on its basis the impugned judgment and decree of the court of appeal below, namely 2nd Additional District Judge, Saran is hereby set aside whereas the judgment and decree of the trial court, namely Munsif 1st, Chapra is affirmed and the suit of the plaintiffs is hereby decreed on contest and the reliefs claimed by the plaintiffs in their plaint are allowed in full. However, in the facts of this case there will be no order as to cost. Patna High Court, (S.N. Hussain, J.) Dated, 31 st March, 2010 N.A.F.R./harish