FIRST APPEAL No.507 OF 1978 Agasint the judgment and order decree dated 10.5.1978, passed by Sri Budhadeo Narayan Sinha, III Additional Subordinate Judge, Sasaram in Title Suit No. 115 of 1995 of 1975/77. 1. ACHHAIBAR KUMAR, SON OF KASHI SAH 2. BIJOY PD. SHAH, SON OF KASHI SHAH RESIDENT OF VILLAGE MAHROR AND TENUAJ, P.S. DINARA, DISTRICT- ROHTAS Versus 1. RAM CHANDER SHAH, SON OF LATE MATHURA SHAH 2. OM PRAKASH, SON OF RAM CHANDER PD. 3. MUNNA 4. SUBASH 5. MANIK CHAND 6. RAJESH 7. GOPAL 8. BACHA NOS. 3 TO 8 ARE MINOR SONS OF RAM CHANDER PD. OF VILLAGE MAHROR AND TENUAJ, P.S. DINARA, DISTRICT- ROHTAS UNDER THE GUARDIANSHIP OF SHRI RAM CHANDER PD. FATHER. 9. UJJAIN PD. SHAH, MINOR SON OF KASHI SHAH 10.ARCHANA KUMARI WIFE OF LATE ANUJ PD. SHAH 11.ANKUR KUMAR, MINOR SON OF LATE ANUJ PD. SHAH 12.DINESH PD. SHAH, MINOR SON OF KASHI SHAH NOS. 9 TO 12 ALL RESIDENT OF VILLAGE- MAHROR AND TENUAJ, P.S. DINARA, DISTRICT- ROHTAS With FA No.79 OF 1987 Against the judgment and decree dated 6.12.1986, passed by Sri S.B. Singh, 3rd Additional Sub-Judge, Sasaram in T.S. No. 115 of 1995 of 1975-77 1. ACHHAIBAR KUMAR, SON OF LATE KASHI SHAH 2. BIJOY PD. SHAH @ RADHA KRISHNA PD. ADOPTED SON OF LATE BANARSI SHAH RESIDENT OF VILLAGE- MAHROR AND TENUAJ, P.S.- DINARA, DISTRICT- ROHTAS Versus 1. RAMCHANDRA SAH, SON OF LATE MATHURA SAH 2. OM PRAKASH, SON OF RAM CHANDRA SAH 3. MUNA SAH 4. SUBASH 5. MANIK CHAND SAH 6. RAJESH 7. GOPAL 8. BACHA NOS. 6 TO 8 ARE MINORS UNDER THE GUARDIANSHIP OF THEIR FATHER RAM CHANDER SAH ALL SONS OF RAM CHANDRA PD. OF VILLAGE- MAHROR, P.S. NATWAR, DISTRICT- ROHTAS. 9. UJJAIN PD. SAH, MINOR SON OF KASHI SHAH 10.ARCHANA KUMARI, WIFE OF LATE ANUJ PD. SHAH 11.ANKUR KUMAR, SON OF LATE ANUJ PD. SHAH 12.DINESH PD. SHAH, SON OF LATE KASHI SHAH 2 RESPONDENTS 9 AND 12 ARE MINORS AND UNDER THE GUARDIANSHIP OF RAM AWDESH UPADHYAY, ADVOCATE, SASARAM. ALL ARE RESIDENTS OF VILLAGE- NATWAR, P.S.- NATWAR, DISTRICT- ROHTAS. For the Appellant :- Mr. Sheo Nandan Rai, Senior Advocate Mr. Kumar Uday Singh, Advocate For Respondent nos. 9 to 12 :- Mr. Chitranjan Sinha, Senior Advocate Mr. Vijay Shankar Shrivastava, Advocate For Respondents :- Mr. Raghib Ahshan, Senior Advocate Mr. Rang Nath Choubey, Advocate Mr. Deepak Kumar Singh, Advocate P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. These appeals are by the defendants. The First Appeal 507 of 1978 has been filed against the preliminary decree by which the plaintiffs’ suit for partial partition has been decreed. The First Appeal 79 of 1987 has been filed against the final decree allocating the shares in accordance with the decree awarded in the First Appeal No. 507 of 1978. 2. The plaintiffs filed a suit for partition of Schedule A and B properties described in the plaint by meets and bounds and for a decree of rendition of accounts for past years and pendentlite against the defendants. 3. The case of the plaintiffs in brief is that one Budhram Sah had four sons namely Sheo Shankar Sah, 3 Gobardhan Sao, Mathura Sao and Banarsi Sah. Mathura Sah had two sons, Ram Chandar Sah, the plaintiff no. 1 and Kashi Sah, the defendant no. 1 who are respectively Kartas of the two joint families. Mathura Sah died in the year 1961 in jointness with the plaintiffs and defendants. After his death Kashi Sah, defendant no. 1 became the Karta of the family. 4. The genealogical table is given below:- 5. There was already a partition in the family of Budhram Sah. Some of the lands of village Mahror were 4 formally partitioned, while cultivation of others lands were done separately for the sake of convenience without there being any formal partition. The plaintiffs specific pleading is that since there are a large number of persons interested in that property, there would be complication in making them parties to the present suit, therefore, the partition is restricted properties of village- Tenuaj which are jointly possessed by the branches of Mathura Sah. 6. It is alleged that at the time of revisional survey, Kashi Sah, defendant no. 1 the elder brother, in his capacity as Karta of the family attended the survey and got Khata No. 10 having an area of 36 decimals recorded in the joint name of the plaintiff no. 1 Ram Chandar Sah and defendant no. 1 Kashi Sah, whereas Khata No. 11 having an area of 1.03 acres has been recorded only in the name of defendant no. 1, Kashi Sah. 7. Khata No. 147, Plot No. 662 having an area of 26 decimals is the joint family property of the plaintiffs and defendants, Khata No. 98, Plot No. 878 having an area of 1.22 acres is in possession of the plaintiffs and defendants for the last 20 years. It is stated that they have acquired title over it by virtue of adverse possession. Others plot consists of mills and houses. Therefore, it appears that the dispute relates 5 to 4 plots of land. It is further stated that schedule A property are joint family properties of both the parties, there are shops, rice mill, ‘chhattal’ and the houses over it. The defendants are not dividing the rent with respect to the mill, shops and houses. 8. Schedule B properties are the properties on which the mill is situated and is in joint possession of both the parties and the plaintiffs claim half share to the said schedule B properties. Defendant no. 1 refused to share the profits and usufructs of the lands of schedule A and B and as such the necessity of filing this suit. It would be relevant to mention that specific lands in schedule A and the revisional entry of the suit lands. Defendants’ case is that there is no unity of title and possession, the suit is not maintainable. 9. According to the defendants, Mathura Sah died in 1961 and after his death, plaintiff no. 1 became the Karta of the family. They further claim that the properties in the family of Budhram Sah have already been partitioned in the life time of Mathura Sah. The properties allotted to Mathura Sah in village- Mahror have been described at schedule ‘Ka’ and the lands which were allotted to the defendants have been described at schedule ‘Kha’. The other branches of Budhram Sah have no connection with the schedule A lands of the written 6 statement. The main objection of the defendants is that the present partition suit is only with respect to a part of the land and as such it is fit to be dismissed. The defendants deny the case of the plaintiffs that the defendant no. 1 had got his name recorded in collusion with the survey staff illegally in Khata No. 98, 10 and 147 in village- Tenuaj property in fact the plaintiffs have filed this suit taking advantage of the illegal entries made in connection with Tenuaj land. It is further stated that the land of Khata No. 11 was purchased by defendant no. 1 from a private fund which he received from the house of his in laws and accordingly it was recorded in the name of defendant no. 1 only. The consideration money with respect to the said Khata No. 11 was paid by defendant no. 1 and it is in the exclusive possession of the defendant no. 1. The plaintiffs’ case that they were claiming joint possession of the mill properties of Khata No. 147 and 98 has been denied. The claim is that the house and shops over plot no. 160 belongs exclusively to the defendants and plot no. 879 and 878 were allotted to them in partition. Whereas with respect to plot no. 662, it is said that it belongs to the defendants exclusively and, therefore, there is no question of any decree with respect to rendition of accounts of partition. 7 10. The defendants have claimed that a panchayati was held with respect to the claim of the plaintiffs in which the Punches gave their award on 10.1.1975 after taking evidence of the parties. The award has been registered and, therefore, this present suit is also hit by the provisions of the Arbitration Acts and the plaintiffs are not entitled for any reliefs. 11. The Trial Court has framed 9 issues but the relevant ones are (a) whether the suit is hit by Section 32 of the Arbitation Act (b) whether there has been a partition by the division of the properties between the parties to the suit or not? (c) whether the plot no. 879 under Khata No. 11 measuring 1.03 decimals in village- Tenuaj is self acquired acquisition of Kashi Sah (defendant no. 1) or not? (d) whether the suit is hit by partial partition or not? 12. The Trial Court has come to a finding that (1) As neither party has filed the award in question or the agreement in question and admittedly it has not been made the rule of law, as such the award cannot have any legal force. (2) The story of partition and division as alleged by the defendants has been disbelieved by the Court. (3) The non inclusion of Khata No. 159 and 90 which are in the joint Khatas of the 4 brothers of Mathura Sah as per the Khatiyan, Ext. 4 is not an 8 impediment to the plaintiffs in filing the suit for partial partition as also the non inclusion of lands of village- Mahror will also not act as an impediment in filing the present suit for partial partition. It has also been held in this context that there is no absolute rule or law prohibiting the suit for partition of some of the properties, hence there is no legal bar in partition of only Tenuaj properties. 13. I intend to dispose of this suit on a limited question as to whether partial partition was admissible in the facts of this case and what reliefs can be given to the parties in the present appeal. 14. Before dealing with this issue however, it would be proper to comment on the findings of the Trial Court with respect to the other issues. The finding of the Trial Court that the award would not be binding on the parties cannot be challenged by either party as none of them cared to file the award in Court and as such no interference is warranted by this Court. 15. The Trial Court has held that the defendants’ case that there was prior partition of the land of Mahror and Tenuaj has not really been proved in a proper way by the defendants. No explanation has been given as to why the plots of Khata No. 159 and 90 are still joint khatas of 4 brothers of Mathura Sah as per 9 the Khatiyan, Ext. 4 series. The Court has come to a finding that the defendants’ case that there was prior partition by division of the properties between the parties to the suit has not been proved by the defendants appears to be some what in conflict with the rest of the judgment. It seems to me that both the plaintiffs and the defendants have claimed that there was a partition amongst the sons of Budhram Sah and the defendants and further claim that there was also partition between the sons of Mathura Sah i.e. the defendant and the plaintiff. However, the evidence that they have led appears to be insufficient and becomes somewhat irrelevant to the issue as the defendants themselves claim that there are certain properties which have been left unpartitioned as per the revisional survey due to good reasons. On the other hand the finding of the Court that Khata No. 159 and 90 are still in the joint Khata of 4 brothers of Mathura Sah as per Ext. 4 would also lead this Court to conclude that in fact this finding would become irrelevant in view of the fact that other brothers are not parties in this suit moreover, by stating that the lands aforesaid are jointly held by the 4 brothers of Mathur Sah, the Court has gone beyond the scope of the suit and this finding ought to be ignored until defendants prove them to be correct or incorrect. 10 16. This Court will now consider the main issue i.e. whether the suit would fail on the ground that it does not include several lands which are even according to the plaintiffs jointly held by other members of the family. Before dealing with this issue, it would be proper to bring on record two facts filed through Interlocutory Applications by the plaintiffs and the defendants. 17. Interlocutory Application No. 4271 of 2000 had been filed for admitting certain documents as additional evidence in this appeal. The documents so produced are the certified copy of the plaint and the certified copy of the entire order sheet of Title Suit No. 120 of 1989. Tile Suit No. 120 of 1989 has been filed by respondents 9, 10, 11 and 12 after the disposal of the present suit 115 of 1995 of 1975/77. The suit has been filed for partition of total land of village Tenuaj which have not been included in the present partition suit. It has also been specifically stated that the lands and properties situated at Mauza Mahror belonging to the plaintiffs and the defendants have not been included in the partition suit as Chakbandi operations are going on in the said lands, however, it has been mentioned that Title Suit No. 120 of 1989 that the plaintiffs of the suit reserve their right to file a 11 partition suit with respect to the lands of Mauza Mahror after the Chakbandi proceedings are concluded. 18. Now this Court would consider the pleadings of the plaintiffs given in the suit with respect to non inclusion of the entire lands of village- Tenuaj. At paragraph 6 of the plaint, it has been stated that the family of Budhram Sah have partitioned the land several years back. Some of the lands of Mauza Mahror were not partitioned and they are in possession of different members of the family in accordance with their convenience. It is said that many persons are interested in those lands therefore, they are not filing the partition suit with respect to other lands of the joint family properties rather restricting the suit to the lands mentioned in the schedule. It would be relevant to point out that Khata No. 147 the lands appertaining to Khata No. 147 Plot No. 662 measuring 26 decimals having houses and shops over it are recorded in the R.S. Khatiyan in the name of Ramdhar Sah, Kashi Sah, Ram Chandar Sah and Gobardhan Sah showing possession of Kashi Sah and Ram Chandar Sah whereas lands appertaining to Khata No. 98 plot no. 878 measuring 1.22 having mill and two houses on it show that they are recorded in the name of Vaidyanath Sah showing ‘Avaidh’ possession of Ram Chandar Sah and Kashi Sah. It is very relevant to state 12 that Khatihan entry Ext. 4 has not been taken into consideration at all and the plaintiffs ought to have made Gobardhan Sah and Vaidyanath Sah parties in the suit. Therefore, I find that the case of the plaintiff fails on account of non joinder of necessary parties. 19. Regarding the question of partial partition, it is an undisputed fact that a suit for partial partition can be filed in certain circumstances. Those circumstances have to be explained and proved. In the present case the only explanation given is that there would be a number of parties interested and, therefore, the suit is not being filed for complete partition of the property. In any event the suit ought to have been filed with respect to the entire properties of village Tenuaj and other properties except for properties of village- Mahror where it is alleged that conciliation proceedings are going on since 1975. Learned counsel for the respondents has relied on certain judgments to show that partial partition is permissible. This Court does not doubt the proposition of law. However, in the facts of this case, the case of the plaintiff is being rejected as the plaintiff has failed to include all the joint family properties and also fails on the ground of non-joinder of necessary parties in the plaint. 20. Learned counsel has referred to (1966) 2 13 SCR 612 in the case of Commissioner of Income Tax, Assam Vs. Nandlal Aggarwal and Anr. This case relates to the guardian’s liability to pay income tax on behalf of the minors. This case is not at all relevant for the purpose of deciding the issues in this case. Another case referred to is AIR 1970 Mysore 168 P.Cheradappa Pai Vs. Agricultural Income Tax Officer, Puttur. In this case there was a partition deed on the basis of which the Court held that the family properties belong to the 4 brothers as tenants in common and therefore, held that the brothers should have been assessed as tenants in common. This case too is not relevant for deciding the issues in this present case. The next case referred to in the case of Kashinathsa Yamosa Kabadi & Ors. Vs. Narsingsa Bhaskarsa Kabadi & Ors. reported in AIR 1961 SC 1077. The family decided to refer the matter to the Panches. The reference is part of the record. The Court held that reference to Panches would show the joint family status. The Court also held that it would be open to the members of the family to divide part of property. The facts of the aforesaid case are very different to the present one. The Court held that the decision of the arbitrator would be final with respect to the award made by the arbitrator. In the present case, there is no written instrument by which the properties were divided 14 rather the suit has been filed for partition of some of the properties belonging to village Tenuaj leaving out several properties of the joint Hindu family. Therefore, this case is not relevant in the facts of the present case. In the Nagpur case, Jagmohan Lakhmichand & Ors. Vs. Ranchoddas & Ors. reported in AIR 1946 Nagpur 84, several issues were involved. The Court has held that it is open to members of a joint Hindu family to make a division and severe their interest in respect of part of the property, while maintaining the status as a joint family and holding the rest as the properties of a joint undivided family. In this case partial partition of the property took place, the suit was with respect to the properties which had not been partitioned. The issues and facts in the present case do not tally with the aforesaid case. 21. In the present facts, the pleadings of the parties and the material that has come on record, I find that the suit filed for partial partition would not be maintainable in view of the fact that there are no special circumstances as to why there was a necessity to file suit for partial partition of the family properties. Undoubtedly the plaintiffs are entitled to ask for partition of the joint family properties however, the judgment of the Trial Court has not taken into account 15 the entire materials and has awarded the decree. In the circumstances, since this Court has allowed the I.A. No. 4271 of 2000 wherein it has been stated that there is already a partition suit 120 of 1989 pending with respect to the other properties belonging to the joint family and I.A. No. 6676 of 2008 filed on behalf of the respondent nos. 1,2,3,7 and 8 stating therein that Title Suit No. 337 of 1999 is pending in the Court of Sub-Judge III, Sasaram with respect to lands situated at Mahror, this Court directs that the records of the present case may be sent to the Court of the Sub-Judge, I, Sasaram where Title Suit No. 120 of 1989 is pending. I may observe that I have not expressed my view with respect to the merits of the case of either parties. The Trial Court while deciding the suit will also take into account all the facts. The Trial Court will expedite the hearing of the suit and not grant unnecessary time to either party. Much emphasis have been placed on the fact that a Consolidation Proceeding is pending with respect to land situated in village- Mahror and as such the partition suit would not be maintainable with respect to the joint family properties. The notification with respect to the Consolidation Proceeding dated 30.5.2001 with respect to police station Dinara has been annexed in I.A. No. 6676 of 2008. 8 Years have passed since the notification has 16 been issued thereafter it appears that letter no. 12 dated 12.10.2002 was issued for staring the proceedings. The next letter which has been brought on record is dated 16.6.2004 which indicates that the staffs were not available for starting the conciliation proceeding and a request was made to return the staffs who were earlier doing the type of work so as to commence the proceedings. What surprises me most is the fact that Title Suit No. 337 of 1999 is allegedly pending in the Court of Sub Judge III, Sasaram however, till today no steps have been taken to conclude the suit although the Consolidation Proceeding perhaps commenced in 2001. The appellants have not filed affidavit denying or accepting the fact that Title Suit No. 337 of 1999 was filed by appellants 3 and 5 before the Sub-Judge, 3rd, Sasaram. All these facts perhaps have to be ascertained by the Court in session of the matter. I also direct that in case the Court of Sub-Judge, 1st is vacant then the District & Sessions Judge, Sasaram and Rohtas may take steps to transfer the suits in question to any Sub-Judge whom he thinks fit and proper. 22. These appeals are disposed of and are remanded to the Court of the Sub-Judge, 1st, Sasaram at Rohtas to dispose of the Partition Suit No. 120 of 1989 along with Partition Suit No. 115 of 1995 of 1975/77. 17 The judgment passed in the Title Suit No. 115 of 1995 is set aside. The appeal is remanded for the reasons discussed aforesaid. The suit should be disposed of expeditiously and the parties should not be permitted to take time for frivolous reasons. Patna High Court, May 20th 2009, N.A.F.R./Sanjay (Sheema Ali Khan, J.)