JUDGMENT
B.P. Jha, J.
1. This appeal arises out of a suit filed by the plaintiffs for partition. The three plaintiffs are the daughters of late Mochi Ram Sen. He died leaving behind Gangadhari as his widow. She also died later on Mochi Ram Sen had five daughters, out of them three are the plaintiffs and the fourth Subi Bala died in 1962 leaving Amar Nandi as pro forma defendant No. 1, whereas the fifth daughter Moni Bala died about 25 years ago leaving Nitai Nandi and Tarni Nandi who are pro forma defendants 2 and 3.
2. Both the plaintiffs and the defendants originate from one common ancestor. It is relevant at this stage to set out the genealogical table as given by the plaintiffs:
______________________________________
| |
Baghunath Kedarnath Sen
| |
| Dhhabi Lall Sen
| (Defdt. No. 1)
_____|______________________________________________
| | |
Mochi Ram Sen Fakir Ram Sen Panchanand Ram Sen
| |
| _____________________|_______________________________________________
| | | | | | | |
| Mahadeo Sahadeo Basudeo Saligram Gunadhar Subodh Dhiren
| Sen Sen Sen Sen Sen Sen Sen
|(D. No. 2)(D. N. 3) (D. No. 4) (D. No. 5) (D. No. 6) (D. No. 7) (D. No 8)
|
|___________________________________________________________
| | | | |
Batasi Bala Rabati Bala Chimanjari Subi Bala Moni Bala
Dasi Dasi Bala (died 1962) (died 25 years ago)
(Plff. No. 1) (Plff. No. 2) (Plff. No. 3) | |
Amar Nandi |
(Pro forma |
Defdt. No. 1) |
___________________|_____
| |
Nitai Nandi Tarni Nandi
(Pro forma Defdt. No. 2) (Pro forma Defdt. No.3)On a perusal of this genealogical table, it will appear that Raghunath Sen had three sons, namely, Mochi Ram Sen. Fakir Ram Sen and Panchanand Ram Sen. Kedarnath Sen had one son named Chhabi Lall Sen (defendant No. 1). The case of the plaintiffs is that the lands described in the schedules attached to the plaint were jointly recorded in the survey settlement in the name of Mochi Ram Sen, father of the plaintiffs. Fakir Ram Sen, father of defendants 2 to 5, and Panchanand Ram Sen, father of defendants 6 to 8 and Chhabi Lall Sen (defendant No. 1). On this footing the plaintiffs claim that Mochi Ram Sen died in a state of jointness and, therefore, they have brought the suit for partition of the properties.
3. The case of the plaintiffs, in short, is as follows:– Mochi Ram Sen, the father of the plaintiffs, died in a state of jointness with his brothers Fakir Ram Sen and Panchanand Ram Sen and his cousin brother Chhabi Lal Sen. Plaintiffs 1 to 3 and the mother of pro forma defendant No. 1 are the only legal heirs of Mochi Ram Sen, Mochi Ram Sen, Fakir Ram Sen and Panchanand Ram Sen had jointly half share in the suit properties. Thus, the plaintiffs’ father, Mochi Ram Sen, had 1/3rd share out of the half share in the properties. The other half share in the said properties belonged to defendant No. 1. It is for this reason that the three plaintiffs claim a joint share to the extent of 3/4th out of 1/6th share in the suit properties, and the pro forma defendant No. 1 is entitled to get 1/4th out of 1/6th share in the properties will go to the branch of Mochf Ram Sen, 1/6th to the branch of Fakir Bam Sen and 1/6th to the branch of Panchanand Ram Sen.
4. The defendants resist the claim of the plaintiffs to the suit properties on two grounds, namely, (1) that the defen-
dants claim adverse possession in respect of the suit properties in respect of the share of Mochi Ram Sen, (2) that the suit is barred by limitation and (3) that there had been a partition between the members of the family after the death of Mochi Ram Sen and that the share of Mochi Ram Sen was divided between Fakir Ram Sen and Panchanand Sen and they used to maintain the widow Ganga-dhari till her death.
5. On these facts, seven issues were framed in the suit. But issue No. 5 is an important issue which is quoted as under:
“Have the defendants acquired adverse possession over the properties in suit. The trial court, on a consideration of the evidence adduced before it, held that the defendants were in adverse possession in respect of the properties of Mochi Ram Sen. The findings of the trial court are to be found in paragraphs 16 and 18 of the judgment of the trial court which are to the following effect:
“The very admission of the P.W. 2 and other attending circumstances go to prove that the defendants are in possession over the suit properties since long openly to the knowledge of the plaintiffs after asserting their rights and after challenging the right of the plaintiffs,” vide Paragraph 16.
“From the facts, evidence and law on the point I hold that the defendants have acquired adverse possession over the properties in suit and the plaintiffs had never any possession,” vide Paragraph 18.
On a perusal of these findings, if is clear that the learned trial Judge relied on the evidence of P.W. 2 for holding that the defendants are in adverse possession of the properties of Mochi Ram Sea The evidence of P. W. 2 has been dealt with in paragraphs 14 and 15 of the judgment P. W. 2. the husband of the plaintiff No. 1. admitted that Gangadhari, the widow of Mochi Ram Sen, died two years after the country became independent, that is, two years after 1947. This also proves that she died 16 years ago. From this fact, the learned Judge drew the conclusion that Mochi Ram Sen died more than thirty years ago and that his widow died 15 years ago. Be that as it may, the above statement of P.W. 2 cannot mean that the defendants were holding the property of Mochi Ram Sen adversely to the plaintiffs. Exts. K series are the rent receipts filed by the defendants. These receipts show that the receipts were issued in the name of Mochi Ram Sen in respect of the suit properties. It is, therefore, clear that the defendants were holding the suit properties not adversely but on behalf of Mochi Ram Sen as well as on behalf of the daughters of Mochi Ram Sen.
6. The concept of joint family system is not unknown to the Dayabhag School of Law, Admittedly, the plaintiffs and the defendants belong to the Dayabhag School of Law. The rent receipts (Ext. ‘Ka’ series) show that the defendants were holding the properties of Mochi Ram Sen on behalf of Mochi Ram Sen as well as on behalf of the daughters of Mochi Ram Sen. There is no evidence that there was separation between Mochi Ram Sen. Fakir Ram Sen and Panchanand Ram Sen, nor is there any finding to this effect. In the absence of the evidence of separation, the jointness of the family shall be presumed. If it is so, then there is no question of adverse possession. Thus, the claim put forth by the defendants is not maintainable. This view is supported by a Division Bench decision of this Court in Jagu Mandal v. Madhab Mandal. 41 Ind Cas 39 = (AIR 1917 Pat 393). The facts of this case are quite identical to that case. That was also a case of Dayabhag School of Law. In that case also, a daughter of a deceased member of the family filed a suit for partition. The defendants in that case also claimed ownership by adverse possession. Their Lordships observed as follows:
“It cannot be assumed that their possession was adverse to her. On the contrary according to a long line of cases it must be held, until the contrary is proved, that their possession was not adverse to her but was maintained for themselves and also for her. There is certainly no evidence that the defendants ousted Api or set up a claim adverse to her more than 12 years before the present suit was brought”
Therefore, in this view of the matter, I accept the case of the plaintiffs and hold that Mochi Ram Sen died in a state of jointness with the defendants, and, therefore, these defendants cannot claim ad-verse possession against his heirs for the simple reason that they were holding the suit properties of Mochi Ram Sen on behalf of Mochi Ram Sen as well as on behalf of the daughters of Mochi Ram Sen.
7. The finding of the trial Court on the point of adverse possession is not maintainable as there is no basis for coming to the conclusion in this regard. There is no oral or documentary evidence to support the finding of adverse possession. Documentary evidence, like Exts. ‘Ka’ series, is on the other hand contrary to the factum of adverse possession. So far as the oral evidence is concerned, the learned Judge did not care to discuss It The onus was on the defendants to prove that they were in possession adverse to the plaintiffs. In the present case, the ouster of the plaintiffs had not been pleaded, and therefore, there cannot be any question of adverse possession.
8. Learned counsel for the defendants (respondents) relied on the testimonies of D.Ws. 1 and 3. Both of them have said in their statements that the three daughters of Mochi Ram Sen came during the sradh of Mochi Ram Sen., These daughters, namely, the plaintiffs, demanded the properties of their father. The defendants refused to partition the lands on the ground that the properties of Mochi Ram Sen belonged to them. I do not think that this is sufficient to hold that they were holding the daughters’ properties in their possession adverse to them. Learned counsel for the appellants contended that this circumstance could not be taken into consideration, because no such averment was made by the defendants in their pleading. I think this is a material fact and if no such averment is made on a material fact in the written statement, a party should not be permitted to lead evidence in regard to such a material fact For this reason also think that the contention of the learned counsel for the appellants is correct and I hold that the defendants ought not to have been allowed to lead the evidence to this effect
9. The concept of joint family is, common both in Mitakshara as well as in Dayabhag law. The difference is this: that in Mitakshara law the essence of a coparcener lies in unity of ownership, but in Dayabhag School of Law the joint family exists in the unity of possession. It is the unity of possession that makes them coparcener. So long as there is unity of possession, no coparcener in a Dayabhag law can say that a particular share in the property belongs to him. In the present case, the rent receipts (Exts. ‘Ka’ series) clearly show that there was unity of possession inasmuch as the rent receipts were issued in the name of Mochi Ram Sen. Therefore, these documents, namely, the rent receipts, go against the theory of adverse possession. I, therefore, hold that these defendants were joint at the time of the death of Mochi Ram Sen and that they were holding the properties of Mochi Ram Sen jointly. Therefore, the plaintiffs are entitled to claim partition.
10. Learned counsel for the defendants further contended that the suit is barred by limitation in view of Article 141 of the Old Limitation Act Article 141 does not apply to the facts of the case. Article 141 applies to a case of recovery of possession. In other words, Article 141 applies to a case where it is, a case of dispossession and a suit is filed for recovery of possession. The instant case is a suit for partition and the defendants were holding the suit lands on behalf of all the daughters of Mochi Ram Sen because they were joint I, therefore, reject this contention.
11. For the foregoing reasons, I direct that all the three plaintiffs be given, in total, 3/4th share out of 1/6th share in the suit properties under partition and the balance 1/4th share be given to pro forma defendant No. 1, the son of Subi Bala. The appeal is, accordingly, allowed with costs throughout and the judgment and the decree of the court below are set asides. In the result, the suit is decreed.
Shambhu Prasad Singh, J.
12. I agree that the suit of the plaintiffs be decreed with costs throughout and a preliminary decree for partitioning their 3/4th out of 1/6th share, i.e.. 1/8th share in the entire property, be drawn up. It will be necessary for the trial court to appoint a Commissioner for effecting the partition by metes and bounds and a final decree will follow after that court considers the report of the Commissioner and hears objections, if any, to it by the parties,
13. I would also like to make a few observations of my own. The suit of the plaintiffs has been dismissed by the court below mainly on the ground that it was barred by adverse possession. For recording the finding of adverse possession, the court below has mainly relied on statements of P.W. 2 in his evidence which, according to it, amounts to an admission that on the occasion of the Shradh of Gangadhari, widow of Mochi Ram Sen, the plaintiffs, who are his daughters, demanded their shares in the property and the defendants told them that they would not give any share to them. If the statements of P.W. 2 do amount to such an admission, then it can be said that the defendants asserted their hostile title more than 12 years prior to the institution of the suit, Undoubtedly Basdeo Sen (D.W. 1) and Mahadeo Sen (D.W. 3), both sons of Fakirchand Sen. in their evidence have said that there was such a demand by the plaintiffs and the defendants openly told them that they would not give any share in the land. But D.Ws, 1 and 3 are defendant Nos. 4 and 2 respectively and they are interested in making such a statement. They have not examined any independent witness to prove assertion of such a hostile title. It is significant to note in this connection that in the written statement they did not plead ouster of the plaintiffs. In paragraph 8 (d) they stated that one year after the death of Gangadhari, the plaintiffs demanded their share of Mochi Ram Sen from Fakirchand Sen and Panchanan Sen and the said Fakirchand Sen and Panchanand Sen refused to give any share to them and since then Fakirchand Sen and Panchanand Sen had been in adverse possession of the share of Mochi Ram Sen, till their death. Even if it be assumed that it amounted to pleading ouster, the assertion of hostile title was one year after the death of Gangadhari and not on the occasion of her Shradh as is the evidence of D.Ws. 1 and 3 in court Their evidence, therefore, cannot be believed even on account of inconsistency with the pleading.
14. Rishikesh Laha (P.W. 2), who is husband of Batasi Bala, plaintiff No. I, in his examination in chief stated:–
^^eqnbZ yksx cVokjk djus dks dgk
exj eqnkysge ugha ekus A**
in cross-examination he said.-
^^yMdh yksx vius gkFk ls Jk) fd;k
vkSj Jk) ds le; fgLlk ekaxk A os cksys fd fgLlk ugha nsaxs tSls gks oSls jgks
A**
learned counsel for the plaintiff-appellants contended, and I think rightly, that these statements of P.W. 2 do not amount to an admission that the defendants asserted that the plaintiffs had no share in the property and that it merely amounted to a demand for partition and refusal thereof. Mere refusal to partition joint property on the part of a member of the family does not amount to an assertion of a hostile title. On the evidence of P.W. 2, therefore, it cannot be held that the ancestors of the defendants asserted a hostile title as against the plaintiffs more than 12 years prior to the institution of the suit Both D.Ws. 1 and 3 have admitted that Nitai, daughter’s son of Mochi Ram Sen, is in possession of some lands. Of course, his mother having predeceased Mochi Ram, he would not be an heir but he could be in possession of the land only on the basis that he was a relation of Mochi Ram. That also shows that the defendants did not exclude the heirs and relations of Mochi Ram altogether. Further, as pointed out by my learned brother, B. P. Jha, J., the receipt Ext Ka (series) also show that even after the death of Gangadhari, receipts were issued in the name of Mochi Ram, Had the defendants intended to oust the heirs of Mochi Ram from the time of the Shradh of Gangadhari, they would not have allowed the name of Mochi Ram to continue in the serista of the landlords.
15. I would like to clarify that Amar Nandi, Nitai Nandi and Tarni Nandi who have been shown in the genealogy as pro forma defendant Nos. 1, 2 and 3 respectively are defendant Nos. 9. 10 and 11 to the suit
16. I would also like to observe that I am not in agreement with one observation of my learned brother, B. P.
Jha, J., that so long there is unity of possession, no coparcener in a Dayabhag law can say that a particular share in the property belongs to him. In Mitikshara School of Hindu Law, no coparcener can claim that a particular share in the property belongs to him so long there is no separation of the status, but Dayabhag law on the subject is as follows:–
“Every coparcener takes a defined share in the property, and he is owner of that share. That share is defined immediately the inheritance falls in. It does not fluctuate with births and deaths in the family. Even before partition any coparcener can say that he is entitled to a particular share, one-third ox one-fourth.”
(vide Article 279, Mulla’s Hindu Law, 13th Edition).
Of course, so long there is unity of possession, no coparcener can say that a particular portion of the property belongs to him on account of his share in the property.