HIGH COURT OI'>GHHATTISGARH AT B!I-ASP®R First AoBealNo.52 OF 2006 APPELLANTS Defendants Meva Devi and others Vs Respondents Oniprakash and others AND First Apoeal No.55^)F^006 APPELLANTS Baijnath Agrawal and others Vs ReAPondents Jagannath Prasad others Agrawal and JUDGMENT iTi'd POST ON 31"'OCTOBER 200^ Sd/- Dhirendra Mishra Judge HIGH COUR1LOELCHHATTISGARH AT ^ILASPUR First Apneal No.52 OF 2006 APPELLANTS Defendants <:/' 2. 3 4 5, 6 1 8 Respondents Vs 1. Meva Devi, W/o Late Ramkishan; aged 70 years Shri Banarasi Das, s/o late Shri Ramkishan; aged about 65 years Smt. Asha Devi, W/o Late Shri Govindram; aged about 45 years Ku. Sonal D/o Late Shri Govindram; aged about 16 years Ku. Rachna, D/o Late Shri Govindram; aged about 15 years Akash Kumar, S/o late Shri Govindram; aged about 11 years Ku. Ayushi, D/o Late Shri Govindram; aged about 9 years (Appellants No. 3 to 7 are the Legal Representatives of the deceased defendant late Shri Govindram, S/o Late Shri Ramkishan) (In the impugned judgment and decree Govindram has been shown as defendant No. 4, however he had died during the pendency of the suit and his legal representatives have already been brought on record and therefore no need to mention the name of this deceased defendant) (Appellants No. 4 to 7 are the minors and therefore they are being represented through their mother and natural Guardian Smt. Asha Devi, w/o. Late Shri Govindram. Pawan Kumar, S/o Late Shri Ramkishan; aged about 45 years All appellants are resident of Gandhi Ganj, Raigarh, Tehsil and District Raigarh (C.G.) Late Shri aged about 52 Omprakash, S/o Ja.gSLnna.th. Agrawal, years Ramesh Kumar, S/o Late Shri Jagannath Agrawal; aged about 49 years Natwar Lal, S/o Late Shri Jagannath Agrawal; aged about 43 years Pramod Kumar S/o Late Shri Jagannath Agrawal, aged about 41 years 5. Smt. Sharda Devi, W/o Pawan Kumar Kediya, aged about 47 years 6. Smt. Kiran Kediya, W/o Pawan Kumar Kediya, aged about 45 years (In the impugned judgment and decree, the name of Jagannath Agrawal and Smt. Pushpa Devi, W/o Jagannath Agrawal has been shown as plaintiff. However, during the pendency of the suit, both Jagannath Agrawal and Smt. Pushpa Devi had expired hence they are not being impleaded as respondent. Their legal representatives have already been brought on record and they are respondents 1 to 6) Plaititiffs All residents of Gandhiganj, Raigarh, Tehsil and Distt. Raigarh (C.G.) 7. Baijnath Agrawal, s/o Late Jaynarayan Agrawal, aged about 75 years, R/o Gandhi Ganj, Raigarh, Tehsil and District Raigarh (C.G.) 8. State of Chhattisgarh through the Collector, Raigarh, District Raigarh (CG) FIRST APPEAL N0. 55/2006 APPELLANTS 1. Baijnath Agrawal, S/o late Jainarayan Agrawal, age 55 years, r/o Gandhiganj, Raigarh, Tehsil and Distt. Raigarh, Chhattisgarh Defendaut No. 1 i. Smt. Savitri Devi, widow of Late Baijnath Agrawal, aged about 70 years ii. Santosh Agrawal, son of Late Baijnath Agrawal, aged about 52 years iii. Mohan Lal Agrawal, son of Late Baijnath Agrawal, aged about 45 years iv. Pankaj Agrawal, s/o Late Baijnath Agrawal, aged about 28 years The above mentioned heirs are resident of M.G. Road Raigarh, Distt. Raigarh C.G. v. Smt. Lata Agrawal, d/o Late Baijnath Agrawal, wife of Shri Shyam Lal Agrawa, aged about 42 years, R/o New Khurshipar, Bhilai C.G. vi. Smt. Madhu Agrawal, d/o Late Baijnath Agrawal, wife of Shri RESPONDENTS . > Vlll. Vs 1. l.A B Sanjay Agrawal, aged about 38 years, r/o 106 Sunder Nagar, Bhilai, C.G. vii. Smt. Sarita Agrawal, d/o Late Baijnath Agrawal, wife of Shri Mukesh Agrawal, aged about 34 years, R/o New Khurshipar, Bhilai C.G. Ku. Uma Agrawal, d/o Late Baijnath Agrawal, aged about 29 years, R/o M.G. Road Raigarh C.G. Jagannath Prasad Agrawal, son of Late Jainarayan Agrawal, through the Legal representatives Smt. Pushpa Devi, widow of Jagannath Agrawal, aged about 71 years (dead deleted) Omprakash, S/o Late Jagannath Agrawal, aged about 52 years C. Ramesh Kumar, S/o Late Jagannath Agrawal, aged about 49 years D. Natwarlal, S/o Late Jagannath Agrawal, aged about 43 years E. Pramod Kumar, S/o late Jagannath Agrawal, aged about 41 years F. Smt. Sharda Devi, W/o Pawan Kumar Kedia, aged 47 years G. Smt. Kiran Kedia, W/o Pawan Kumar Kedia, aged about 45 years Plaintiffs All residents of Gandhiganj, Raigarh, Tehsil and Distt. Raigarh, C.G. 2. Mewa Devi, Widow of Ramkishan aged about 65 years-Defendant No. 2 3. Banarsidas, Ramkishan, Defendant No. 4. Govind Ram, Ramkishan, aged (dead deleted), Representatives- Defendant No. 4 A. Smt. Asha Devi, w/o. late Goyindram, aged about 43 years B. Ku. Sona, D/o Late Govindrara, aged about 15 years C. Ku. Rachna, D/o late Govindram, aged about 15 years D. Akash Kumar, S/o late Govindram, aged 11 years E. Ku. Ayushi, D/o Late Govindram son of aged about 40 3 son of about 38 through: Late years- Late years, Legal aged 9 years Minors through their natural Guardian mother Smt. Asha Devi, All resident of Gandhiganj, Raigarh, Tehsil and Distt. Raigarh, C.G. Pawan Kumar, s/o Late Rarakishan aged 35 years- Defendant No. 5 Respondent No. 2 to 5 are residents of Gandhiganj, Raigarh, Tehsil and District Raigarh, C.G. State of Madhya Pradesh (Now State of Chhattisgawrh), through: Collector, Raigarh. Present: Shri P. Diwakar, Sr. Advocate with Shri P.R. Patankar, Advocate for the appellants Shri Ravish Agrawal, Sr. Advocate with Shri Sanjay S. Agrawal, Advocate for the respondents No. 1 to 7. Shri Arun Sao, Govt. Advocate for the respondent No. 7. Shri Shree Kumar Agrawal, Sr. Advocate with Shri Anand Kumar Gupta, Advocate for the appellants. Shri Ravish Agrawal, Sr. Advocate with Shri Sanjay S. Agrawal for the respondent No. 1 to 5. Shri Arun Sao, Govt. Advocate for respondent No. 6. JUDGMENT (Delivered on o3 / 10/2007) Dhirendra Mishra, J 1) First Appeal No. 52/2006 preferred by the original defendants No. 2, 3 and legal representatives of defendant No. 4 and First Appeal No. 55/2006 preferred by the defendant No. 1 are being disposed of by this common judgment as both the appeals are arising out of the judgment and decree dated 25th February, 2006 passed in F.A. No. 50A/84 whereby learned First Additional District Judge, Raigarh has decreed the suit filed by the Original Plaintiff Jagannath Agrawal for recovery of possession of the suit house and decree of declaration of the title oj the plaintiff over the agricultural lands described in Schedule 5 of the plaint. 2) Plaintiff Jagannath Agrawal and defendant No. 4 Govind Ram died during pendency of the suit whereas defendant No. 1 died during pendency of the appeal. (Parties hereinafter shall be referred to as per their description before the trial Court.) 3) Relationship between the parties in the suit is not in dispute. Plaintiff Jagannath, defendant Baijnath and late Ranikishan, husband of defendant No. 2 and father of defendants No. 3 and 4 were sons of Jainarayan Agrawal. Ramkishan died in the year 1967. 4) The case of the plaintiff in brief is that the House No. 46, Raigarh situated in front of Police Kotwali, Gandhi Ganj Ward 15 and other Pakka houses in all 8 in number and 2 Kachcha houses were acquired property of late Jainarayan and 30 acres of land, cash, gold ornaments etc acquired by Jainarayan Agrawal was property of the joint family. During lifetirae of late Jainarayan Agrawal, Ramkishan Das and Baijnath expressed their desire of doing independent business after separating from the family due to domestic quarrels in the family and, therefore, late Jainarayan on Kartik Badi 13, Samvat 2005 (year 1949) with the consent of his three sons, affected oral partition of all the movable and immovable properties ahd separated Ramkishan Das and Baijnath from the joint family after giving them their share, however, the younger son Jagannath Agrawal remained joint with the father. Since then, the defendant No. 1 and Ramkishan Das are independently in the possession of their respective shares. A memorandum of partition was recorded on Asarh Sudi 2 Samvat 2006 and the same was signed by late Jainarayan and witnesses d." ^*1-? (. Agrawal, LaxminarayanAgrawal, Birkhman Agrawal and Gopiram, however Hariprasad Agrawal and Laxminarayan Agrawal have died. Late Ramkishan Das and defendant Baijnath also gave acknowledgement of receiving their shares. Since the plaintiff was young boy at the time of oral partition, he continued to live jointly with his father. In the said partition, apart from cash and jewelry and other house hold utilities, Ramkishan Das was given three Pakka Houses in the city of Raigarh whereas defendant Baijnath was given one Pakka house of Sadar Bazar and two Pakka houses situated over Khasra No. 1460 and 1462. In the said partition, Jainarayan kept the renaaining two Pakka Houses, two Kachcha houses and 30 acres of agricultural land situated in village Beladula for himself and his son Jagannath. Apart from this, the responsibility towards loss and profit of Firm Pannalal Jainarayan fell in the share of late Jainarayan and the plaintiff. Since the house allotted in the share of Baijnath was not fit for residential purposes, Baijnath was allowed to live in the house No. 46 situated in Ward No. 15, Gandhiganj, Raigarh (the suit house) purely as a licencee. In the meanwhile, mother of the plaintiff died in the year 1959 and father Jainarayan died on 14th January, 1961 and after their death, the plaintiff became absolute owner of the joint property of Jainarayan and Jagannath. After the death of the father, plaintiff went to Kolkata and Siligudi in the year 1963-64 for doihg business. The records pertaining to the house were mutated in the share of respective share holders in the year 1949 itself without any objection of the defendants or late Ramkishan Das. In April, 1983, the plaintiff returned to Raigarh and started residing in the suit house and requested the defendants to vacate the house and on refusal, the suit for vacant possession, damages was filed, subsequently the suit was amended by the plaintiff on 19-4-1989 and by this amendment, it was pleaded that after the oral partition, the plaintiff was in possession of the agricultural land admeasuring 30 acres described in Schedule 2, however he sold some part of the land between 1969 to 1972 and the plaintiff is in possession over the remaining agricultural land of 17 acres 85 decimals described in Schedule 5 and a declaration was sought that he is the owner of the land situated at village Beladula described in Schedule 5 of the plaint. 5) The defendant No. 1 in his written statement denied that the properties described in the plaint were the acquired properties of Jainarayan and they stated that it was a property earned by joint family. The partition was also denied. Partition in the year 1949 as alleged in the plaint was denied and pleaded that Ramkishan Das and Baijnath were not allotted any share and it was further pleaded that Jainarayan and his sons continued to be joint and all the members of the joint family enjoyed the joint property together. Oral partition, execution of meinorandum of partition and acknowledgement of share by Ramkishan Das or defendant was denied. It was pleaded that Firni Pannalal Jainarayan continued to be the firm of joint family and the suit house is the property of the joint family and it is jointly possessed by them. The pleading that the plaintiff became absolute owner after death of Jainarayan in the year 1961 has been denied and it has been pleaded that after the death of father, all the properties of the joint family has been inherited by coparceners on the basis of survivorship. The plaintiff has obtained the lease of the suit land secretly and the defendants after knowing about the same have raised objection before the authorities. The ownership over the agricultural land of the plaintiff on the basis of oral partition has also been t7- denied. It has been stated that the plaintiff has sold his 1/3rd share of the agricultural land with the permission of the defendants and therefore, the plaintiff does not have any right over the remaining land and the defendants are in possession of the reinaining agricultural land since beginning. 6) The defendants No. 2 to 5 have also taken identical stand in their written statement. 7) On the basis of the pleading of the respective parties, issues were framed. The plaintiff examined himself as P.W.l, Manoj Kumar Mishra as P.W. 2, Hariprasad Nayak as P.W. 3, N.R. Ratre as P.W. 4 and A.K. Pratap as P.W, 5 whereas the defendant examin^d Baijnath as D.W. 1, Shyam Sunder Agrawal as D.W. 2, Bhaggu Bhai Gandhi as D.W. 3 and Santosh Kumar as D.W. 4. 8) Learned Additional District Judge decreed the suit by recording a finding that the defendants are in possession of 1/3rd portion of the complete suit house, proper court fee has been paid by the plaintiff partition of the properties belonging to undivided Hindu family took place in the year 1949 between the parties and in the said partition, the suit property fell in the share of the plaintiff and his father and the defendants are residing in the suit house as licencee with the permission of the plaintiff and his father and the licence has beerl revoked by the plaintiff and the plaintiff is entitled to recover the vacant possession of the suit house and the defendant shall deliver possession of the suit land described in Schedule I with the red ink within a period of two months. It has been further held that the land described in Schedule 2 fell in the share of the plaintiff and the plaintiff is in possession over the land described in Schedule 5 continuously since 1964 till date and the plaintiff's suit is within the limitation and accordingly a decree of declaration of ^) title over the agricultural land described in Schedule 5 that the defendants have no right over the same has been passed and the suit has been decreed with cost. 9) The grounds urged by the learned counsel for the appellants in support of their appeal may be summarized as under:- A. The plaintiff's claims, the property to be self- acquired property of Jainarayan who affected oral partition and allotted shares to his sons Baijnath and Ramkishan Das. However the partition of any property can be affected only among the parties who have pre- existing right to the property and the same could not be orally partitioned between the sons by Jainarayan himself as his sons did not have any pre-existing right to the property during the life time of Jainarayan. Reliance is placed on Hiraji Tolali Baewan -v- Shakuntala1. B. The case of the plaintiff is that Jainarayan affected oral partition on Kartik Badi 13 Samvat 2005 (year 1949) with the consent of his sons and separated his sons Ramkishan Das and Baijnath frora the joint fainily after giving their shares and he along with his younger son Jagannath continued to be joint and memorandum of this oral partition was recorded on Asarh Sudi 2 Samvat 2006, however it has also been pleaded that on the basis of the above memorandum, Ramkishan and Baijnath acknowledged the receipt of their'share and gave tUe same to Jainarayan, however the memorandum of . partition and alleged acknowledgment given by Ramkishan and Baijnath has not been adduced in evidence and proved. The application under Section 65 of the Indian Evidence Act for permission to lead secondary evidence of memorandum of partition was allowed by the trial Court however, the defendants moved a civil revision No. 'AIR 1990 SC 619 10 477/89 against the order dated 15-9-89 of the Trial Court which was allowed by the High Court of Madhya Pradesh vide order dated 1-10-1993 with an observation that there was no basis to arrive at a satisfaction that the original is destroyed or lost. The plaintiff's S.L.P. against the above order was also dismissed by the Apex Court. Referring to Section 91 of the Indian Evidence Act, it is argued that the case of the plaintiff is based on memorandum of oral partition and acknowledgement of partition executed by the defendant on the basis of memorandum of above partition, therefore, the best evidence of contents of the document is the document itself which could be proved by primary evidence by production of the original document. Section 91 of the Evidence Act excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led. Since the plaintiff has not produced the original document being the memoranduin of partition or acknowledgement of partition, oral evidence adduced by the plaintiff to prove the contents of the document should have been excluded. Reliance is placed on Hiralal and others -v- Badkulal and others2 and Bai Hira Devi and others -v- Official Assienee of Bontbay3. C. It was further argued that the plaintiffs have withheld the best evidence i.e. the alleged memDrandum of partition and acknowledgement of the partition given by the defendants which would have thrown light on the issue in controversy. In these circumstances, the trial Court ought to have drawn adverse inference against the plaintiffs under Section 1-14 of the Indian Evidence Act. Reliance is placed on Gopal Krishna.ji Ketkar -v- Mohanied Haji Latif and pthers4. 2AIR 1953 SC 225 3AIR 1958 SC 448 AIR 1968 SC 1413. \. 11 D. Referring to document of Ex. D-3, it has been argued that the plaintiff has taken different stand before the Tehsildar in the application for rautation wherein he has claimed that according to oral partition, the land at Beladula was allotted in his share by his father whereas in the civil suit he claiins that he continued to be joint with his father. Similarly in the document of Ex. D-5, the plaintiff has objected to the transfer of the house by his brothers claiming that he also has a share in the said property though in the plaint it has been mentioned that the property in question fell in the share of his brothers whereas document of Ex. P-13 is the receipt of the tax of the suit house issued by the Municipality which shows that the house is recorded in the name of Firm Jainarayan Pannalal. The Tehsildar vide order Ex. P-21 has rejected the application for mutation preferred by the plaintiff on the basis of the memorandum of partition and directed the parties to get their title adjudicated in Civil Court. E. Extensively referring to the statement of Hari Prasad Nayak (P.W. 3), it has been argued that the plaintiffs have examined this witness as the witness of oral partition as he claims that Jainarayan and his family were his clients. However, he is the witness of only oral partition and he expresses his ignorance about execution of memorandum after oral partition. On the contrary, he has submitted that had the oral partition been reduced into writing, he would have definitely known about the same. The version of this witness is contrary to the case of the plaintiffs who have claimed that memorandum of oral partition was subsequently recorded, therefore, the evidence that the oral partition was affected in his presence is not worth reliance. This witness was also not cited by the plaintiff in the list of witnesses subraitted by him. F. Referring to para 26 of statement of P.W. 1 Jagannath Agrawal, the plaintiff, it has been argued 12 that he is not a witness of partition and he does not know anything about the partition as the same was affected by his father. This witness has admitted that he had preferred objection vide Ex. D-5 against the sale by the defendants of the house of their shares. Except 'these two witnessed, there is no oral evidence adduced by the plaintiff in support of the oral partition. G. The Court below ignoring the above documentary evidence and inconsistency in the oral evidence of the plaintiff has acted upon their testimony and decreed the suit. The plaintiff has failed to prove his case by leading credible documentary evidence and the court below ought to have dismissed the suit. 10) Relying upon the judgment in the matter of Conitnissioner of Wealth JTax, Ka^ipur etc. -v- Chander Sen etc.6, it is argued that under the Hindu Law the son would inherit the property of his father as karta of his own family. But the Hindu Succession Act has modified the rule of succession. The Act lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and Class I of the Schedule provides that if there is a male heir of a Class I then upon the heirs mentioned in Class I of the Schedule. 11) Referring to the judgment of Bipin Shantilal Panchal -v- State of Guiarat and anr.6, it is argued that the trial court has not decided several objectians reserved by it with respect to the admissibility of the documents during evidence which were necessary before delivery of the judgment. 12) Sum and substance o.f the arguments advanced by the counsel for the respondents may be summarized as under:- 5AIR 1986 SC 1753 '(2001) 3 SCC 1 -)3- A. With respect to the contention of the oral partition that late Jainarayan could not have affected partition of the suit property since it was his self-acquired property and his sons did not have any pre-existing right to the said property, referring to paragraph 2 of the plaint, it has been argued that though the property has been shown to be acquired by late Jainarayan, however, the property has been mentioned in the sanie paragraph as property belonging to the joint family. The defendants have also not disputed in their written statement that the property in question was the property of the joint family, thus it is neither the case of the plaintiff nor of the defendants that the property was exclusive property of late Ja.ina.ra.ya.il and acquired by himself and it was not the property ofjoint family. B. Referring to para 322 of Chapter 16 of 19th Edition of Mulla Hindu Law it was contended that the father can affect partition during his lifetime of the family property exercising his right "patria potestas" i.e. "superior power" or "peculiar power". C. The oral partition was affected in the month of Kartik Badi 13 Samvat 2005 as per pleading of the plaintiff and Ramkishan and defendant Baijnath were separated from the joint family after they were given their due shares and thus oral partition had already taken effect in Kartik Badi 13 Samvat 2005. It is argued that no document is necessary to effect partition amongst joint owners and the partition may be affected orally and subsequently the document may be made for recording the fact of such partition and in the event, the document is inadmissible, partition can be proved by oral evidence. The case would be different where the partition is claimed to be affected on the basis of document and the document is inadmissible. for any reason, in these circumstances alone, no oral evidence can be given in view of Section 91 of the Evidence Act. I:: .:'!!.' Reliance is placed on Soinalisineh -v- Lakhalal7, Ranirattan -v- Pannanand8, Gerua Biswal -v- Kshyanaa Biswal9, Kanamathareddi Kanna Reddv -v- Kananaatha Reddy Venkata Reddv10, Juhari Sah and others -v- _Dwa.iib.Si Prasad Jhun.ihunwala and others11, Sint. Krishna Bai and others -v- Shivnath Singh and others12. D. Referring to para 20, 21 and 22 pf the impugned judgment, it was argued that the findings are based on duly proved public documents which establishes the version of the plaintiff and his witnesses that the property in question was orally partitioned in the year 1949 and accordingly revenue records being maintenance Khasra were mutated pertaining to the suit house. Document of the year 1956 being permission accorded to the plaintiff for repair of the suit house has also been filed. The names of the defendants were also mutated in