B.P. Sharma, J.
1. The present appeals has been filed against the judgment and order of the subordinate judge II, Danapur in Title suit No. 128/71 on the 9th of july 1993 and 23rd of july 1993 respectively. The plaintiffs had brought a suit for partition of the properties separately described in two Schedules of the plaint. The first Schedule is said to be the ancestral property jointly belonging to both the parties who are the plaintiffs and the defendants having common ancestor. The second Schedule relates to the properties acquired by the Karta of the family in the names of different members of the family including the plaintiffs.
2. According to the plaintiffs, two brothers, namely, Tulsi Yadav and Gopi Yadav were the sons of one Kauri Yadav of village Sahar-Rampur in P.S. Naubatpur of Patna District, fulsi Yadav died leaving behind his son Faujdar Yadav and Gopi Yadav died leaving behind his son Ramlal Yadav. Faujdar Yadav also subsequently died leaving behind his sons, namely, plaintiff No. 1 Hawaldar Yadav, plaintiff No. 2 Radha Yadav and plaintiff No. 3 Bhunasi Yadav, who also died subsequently in the year 1972 issue-less. Hawaldar Yadav had three sons, namely, Dina Nath (Plaintiff No. 4), Sidhnath (Plaintiff No. 5) and Ganga Sagar (Plaintiff No. 6). Dina Nath had two sons, Satyadeo (Plaintiff No. 8) and Satyender (Plaintiff No. 9). On the other hand, Ramlal Yadav had three sons, Sukhlal (defendant No. 1), Sarjug (defendant No. 2) and Laldev (defendant No. 3). Sukhlal was issue-less. Sarjug had two sons, namely, Dip Narayan (defendant No. 4) and Tandeo (defendant No. 5). Defendant No. 6 happens to be the son of Dip Narayan (defendant No 4). Defendant No. 3 Laldev had four sons, namely, defendant No. 7 Prabhansh, defendant No. 8 Vijaya, defendant No. 9 Brajendar and defendant No. 10 Nepali. Subsequently, one Baby son of Prabhansh has also been added as defendant No. 11. According to the plaintiffs, Tulsi Yadav and Gopi Yadav happened to be the full brothers and constituted joint Mitakashra Hindu family. It is clear that the plaintiffs are the descendants of Tulsi Yadav and defendants are the descendants of Gopi Yadav. All of them happened to be the members of a Joint Mitakashra family. Now, Sukhlal Yadav being the eldest brother and cousin brother in the family worked as Karta after the death of his father who was Karta during his life time. The family owned and possessed sufficient land which was canal-irrigated and all of them worked on the land to get the maximum out-turn and the family had made acquisition of some land from time to time. It is further stated that all the joint family income was retained by defendant No. 1 Sukhlal as Manager and Karta of the joint family. It is also further stated that all the papers of the joint family were in possession and custody of defendant No. 1 and he used to keep the entire income of the joint family and invest the money in business also in improper manner. Further, it is stated that the plaintiffs came to know that a sum of Rs. 30,000/- was accumulated by defendant No. 1 which he kept partly in Bank and rest in hand in cash. Since the entire property was acquired by the joint family, the plaintiffs have also got share in the said property. Thus, according to the plaintiffs, half share in Schedule properties belonged to the plaintiffs and the rest half belongs to the defendants. It is asserted that the defendants in collusion with one another went on usurping and misappropriating the entire savings and the properties in the suit. The defendants also did not take care of the plaintiffs and behaved in a manner in disregard of the plaintiffs’ interest. The plaintiffs, therefore, felt annoyed and demanded partition of the property, but the defendants refused to partition in the property and ultimately when they refused to do so on 21.6.1971, the plaintiffs brought this suit for partition.
3. Two sets of written statements were filed; one on behalf of defendants Nos. 3 and 7 and another on behalf of defendant Nos. 5, 9 and 10. Inter alia, it was pleaded on behalf of the defendants that the plaintiffs have got no cause of action for the suit and the suit is barred by estoppel, waiver and acquiescence and the suit is not maintainable. Further, it is stated that the suit is barred by limitation and adverse possession and the same is also under-valued and the court-fee paid is insufficient. Further, it is stated that the suit is bad for non-joinder of necessary parties and is barred by resjudicata. Further, the defendants asserted that Tulsi Yadav and Gopi Yadav were the members of the joint Hindu Mitakshara, no doubt, and they were jointly recorded in the survey record of rights in the original survey having equal share. Further, it is stated that the joint family of Tulsi Yadav and Gopi Yadav had about 6 acres of land and after the death of Tulsi Yadav his son Faujdar Yadav came in joint possession of the joint family property with Gopi Yadav. It is also further stated that the joint family of Gopi Yadav and his son Ramlal Yadav and nephew Faujdar Yadav acquired about 1.30 acres of land from the joint family property. Further, according to the defendants, Gopi Yadav died a few years after the death of Tulsi Yadav in jointness. After the death of Ramal Yadav his sons Sukhlal Yadav, Sarjug Yadav and Laddu Yadav and cousin Faujdar Yadav all came in possession of joint family property by rule of survivorship. Therefore, after the death of Ramlal Yadav, there was a partition between three sons of Ramlal Yadav and their cousin, the plaintiffs. This partition was in estate, mess, residence and business more than 60 years ago, then Faujdar Yadav got his separate possession over the land of his share. It is further stated that since the partition took place 60 years ago, the parties have been coming in separate possession over their respective lands and one branch had nothing to do with the business of the other branch and acquired lands out of their funds separately. Further, it is stated that Sukhlal Yadav had his good earning out of his service and he acquired several acres of land. Sarjug Yadav was also a Minid in a gram Gola at Arrah and he had also acquired several acres of land out of his own earning. Further, it is stated that Laddu Yadav also purchased 4 decimals of land in Plot No. 1203 out of his own fund and thus, the plaintiffs have no concerned with the land acquired by the three brothers and their sons in the branch of Ramlal Yadav. Further, it is stated that the said Sukhlal Yadav (defendant No. 1) was issueless and he gifted his share of property about 6 24 1/2 acres of land to his brother Laddu Yadav by a registered deed of gift on 22.8.1971 and Laddu Yadav became owner of the said property and came in possession after the death of Sukhlal Yadav by the rule of survivorship and also as the done of Sukhlal Yadav. It is further stated that there was a joint family property of the plaintiffs and out of the joint family income all the acquisitions were made separately with their own fund of the parties and the plaintiffs out of their income purchased some property separately and the properties acquired by the defendants were separate properties and the plaintiffs did not have any right, title or interest in the property. Therefore, it has been stated that there is no cause of action in the suit and the plaintiffs are not entitled to any relief claimed by them.
4. On the basis of the pleadings of the parties the following issues were framed by the trial Court:
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff got valid cause of action for the suit?
(iii) Is the suit barred by law of limitation, waiver, acquiescence and estoppel?
(iv) Is the suit barred by adverse possession?
(v) Is the suit bad for non-joinder and mis-joinder of parties and is barred by res-judicata?
(vi) Whether there is unity of possession between parties or any partition took place at the time of their ancestors?
(vii) Is the plaintiff entitled to a decree as claimed?
(viii) Whether the plaintiffs are entitled to any relief or reliefs as claimed?
5. It is, therefore, apparent that the main issues for the decision in this suit were issues No. 6 and 7 and both these issues were considered together and decided by the trial Court and the trial Court held that issues No. 6 and 7 are decided in favour of the defendants and against the plaintiffs and accordingly, the trial Court held that the plaintiffs were not entitled to partition as claimed.
6. It has been submitted on behalf of the appellants that the entire findings of the learned lower Court are not in accordance with law and the judgment suffers from improper appreciation of evidence. It is stated that the learned lower Court erred in holding that there was previous partition between the parties with respect to the suit property. It is stated that the learned lower Court erred in recording his finding only on the basis of evidence of P.Ws. 9 and 10 and without considering the evidence of the defendants or other witnesses and without looking into the important documents filed. It is also further stated that the learned trial Court erred in saying that the onus was on the plaintiffs to establish that the plaintiffs and the defendants were joint. It is also further stated that the learned trial Court has erred in holding that the plaintiffs have no cause of action for the suit and the learned trial Court failed to properly appreciate the evidence on the plaintiffs. It has been further stated that Exts. ‘B’ series and ‘D’ series are documents created after filing of the suit and, therefore, wholly unreliable, but the learned trial Court has relied upon these documents in improper manner. It is also further stated that the learned trial Court refused to consider the documents (Exts. 1 and 2 series) which proved the case of the plaintiffs. It is stated that the evidence of P.Ws. 9 and 10 have supported the case of the plaintiffs but the learned trial Court has interpreted their evidence in a different manner and has recorded findings in favour of the defendants and as the evidence has not been appreciated in proper manner, the learned trial Court has arrived at erroneous conclusion. It is further stated that the learned trial Court has lost sight of the presumption in law regarding jointness of Hindu Mitakshra family and, therefore, the onus lies upon the defendants to prove their case of previous partition pleaded by them. It is further stated that D.W. 18 admitted in his evidence that Sukhlal Yadav was the eldest in. the family and alter the death of Ram Lai, Sukhlal was the Karta of the family and thus the case of the plaintiffs has been supported by him, but the learned trial Court failed to appreciate the evidence and did not record his finding in this manner. It is also further stated that, the gift in favour of Laddu was created after the suit was filed and., therefore, it was not fit to be considered and taken into account. Therefore, it is stated that the learned trial Court has considered the irrelevant and inadmissible materials for arriving at erroneous conclusion and, therefore, it has been submitted that the appeal is fit to be allowed and the judgment and decree of the trial Court are fit to be set aside and a prayer has been made that the suit of the plaintiffs be ordered to be decreed with cost.
7. It, however, appears that after the suit was filed, subsequently one petition was filed for amendment of the plaint. The persons whose acquisitions’ were disclosed later were added as parties and by a separate amendment petition, it was stated that Schedule-I property given at the foot of the plaint was incorrect and, therefore, prayed for its complete deletion and substitution with the Schedule I given, in the amendment petition dated 16.9.1971. Subsequently, after the death of defendant No. 2. Sarjug. his name was expunged and the names of his daughters were added vide another amendment petition dated 2.3.1990.
8. Both the parties have led evidence in favour of their respective easels and have also filed a large number of documents. So far as plaintiffs are concerned, P.W. 1 Ram Bhagal Bhagat has stated about the jointness. of the family and he has stated that the entire property was joint and the acquisitions were also made from the joint family income. P.W. 1 SukhlalSao has also stated that he knows both the parties and they were joint and the cultivation was also joint. P.W. 2 Awadhesh Singh has also stated that he knew the family of both the parties and they were all along joint and there was no partition in the family and he saw jointly cultivation in the property. P.W. 3 Mahabir Paswan has also stated that the family of the plaintiffs and the defendants was joint and they were jointly cultivating their lands. P.W. 4 Kedar Nath Dubey has also similarly stated that the family was joint and the parties were also joint and they had joint cultivation. P.W. 5 Deo Saran Ram has also supported the case of jointness and joint cultivation. P.W. 6 Hari Charan Bhagat has also stated about the jointness of the plaintiffs and the defendants and their joint cultivation. Similarly, P.W. 7 Mahesha Nand Dubey has also stated about the joint cultivation of the property by the two parties. P.W. 8 Dhunmun Bhagat has also stated about the jointness of cultivation of the family. P.W. 9 Sidh Nath Yadav happens to be plaintiff No. 5 and he has stated that he makes Pairwi on behalf of the plaintiffs and he happens to be the son of Hawaldar Yadav, one of the sons of Faujdar Yadav. According to him as his father was too old, he was not in a position to appear in Court and, therefore, this witness had knowledge of the description of the land. He has stated that he learnt about the Genealogy from his father. He has given a genealogy and has stated that both the branches of Tulsi Yadav and Gopi Yadav are still joint and they had their joint cultivation and there was sufficient income from the joint family cultivation and several properties were acquired from this joint family income. He has stated that the-entire income of the family was kept by Sukhlal himself and he used to sell the surplus produce’ of the joint family land and be also used to make purchases in the names of different family members of the parties including himself. He has also stated that Sarjug (defendant No. 2) was also not in service; rather according to him he used to remain all along in village and, therefore, there was no question of his acquiring separate property from his personal income. He has also stated that the deed of gift executed by Sukhlal in favour of Laddu (Defendant No. 3) is illegal, because it was created during the pendency of the suit P.W. 10 Dina Nath Yadav is defendant No. 4 and he has also supported the case of the plaintiffs. P.W. 11 Mahehdra Paswan has also stated that the family had their joint cultivation. P.W. 12 Md. Kuddus has proved some rent receipts (Ext. 2 series).
9. On the other hand, our of the witnesses examined on behalf of the defendants, D.W. 1 Ghamandi Ram is a Witness on the point that the branches of Faujdar Yadav and Ramlal Yadav were separate for the last about 25-30 years. He was examined in August 1992. Thus, it may be stated here that according to the defendants in their D.Ws. the partition had taken place about 60 years before filing of the suit. This witness has stated in 1992 that the partition was affected about 25-30 years ago only. D.W. 2 Raj Narayan Singh has stated that he knew the family and that the families of Faujdar and Ramlal were separate in mess, business and residence. He is a man aged about 46 years and he has stated that he attained the Hosh at the age of about 15 years, so the partition never took place in his Hosh. It is, therefore, clear that, that the partition had taken place more than 30 years before he deposed in August. 1992 D.W. 3 Sukhi Chand Bhagat has also stated that he had not seen either Faujdar or Ramlal, because they had died prior to his Hosh and he had further stated that the families of Faujdar and Ramlal were separate in mess, residence and business as well as cultivation for about 30-35 years ago. D.W. 4 Jagdish Das has stated that he also saw the families separate and their cultivation was also separate. D.W. 5 Sajeewan Ravidas has also stated that there was a partition in the family earlier and both the parties having their separate mess/business and residence. D.W. 6 Ramashish Vishwakarma has proved a document marked Ext, ‘A’, D.W. 7 Sohan Prasad has proved some rent receipts marked Exts. “B” to B/8 D.W. 8 Faujdar Singh has proved some Chaukidari receipts marked Exts. ‘C’ ‘C/1’ and ‘C/2’. D.W. 9 Raghubar Singh has also proved three receipts, marked Exts. B/9, B/10 and B/11 and also B/12 to B/15. D.W. 10 Ramjee Rai has also proved some Chaukidari receipts marked Exts. C/3 to C 21 and also marked Exts. C/22 to C/26 and also marked Ext. C/27 to C/-32. D.W. 11 has also proved two rent receipts marked Exts. B/16 and B/17 and has also proved Canal purcha marked Exts. D and D/1. He has also proved some other Chaukidari Receipt shiarked Exts. C/33 to C/35. D.W. 2 Suraj Kant Mishrahas proved a sale-deed marked Ext. D1. P.W. 13 has proved the sale-deed marked Ext. ‘D/1’. D.W. 14 Nawal Kishore Singh has proved some rent receipts marked Exts. B/18 and B/19. D.W. 15 is formal witness. D.W. 16 Sunil Singh has also proved a Chaukidari it Receipt D.W. 17 Pintu Singh. Son of Dina Nath Singh has proved some canal receipt’s marked Exts. To E/4 D.W. 18 Hardeo Yadav is the defendant No. 5 himself and he has stated that there was a partition in the family in respect of 11 bighas of land and according to him, this partition had taken place between Ramlal and Faujdar Yadav and both got half share each. He, however, stated that the partition had taken place before this witness had attained Hosh, but he found both the branches living together since his Hosh. He has also further stated that after partition between Faujdar and Ramlal, there was a partition between Sukhlal, Sarjug and Laddu also about 26 years ago. He deposed in August 1992. He has also denied that Sukhlal was the Karta of the family and he has stated that after partition both the branches acquired properties separately. He has also stated that since the. Branch of Laddu had also separate property, acquisitions were made by his branch separately. However, in his cross-examination, he expressed his enability to say as to when Tulsi Yadav and Gopi Yadav died. He has also stated that Sarjug (defendant No. 2) was also working in a grain Gola at Arrah, but he has not given any detail about the name of the Gola or its proprietor. He has also stated that Sukhlal was not in a Government service, but. he was not doing any cultivation work and his cultivation was separate from others. Regarding other documents also, he has expressed complete inability to give details about it. D.W. 19 Suresh Prasad Sharma has also proved sale-deeds marked Exts. E and E/1. D.W. 20 Yogendra Yadav has his alias name Nepali as Defendant No. 10. He has also stated that he learnt about the partition in the family from his father and according to him acquisitions were made in the family by the different parties after this partition and he has also further stated that there was a partition between Sukhlal. Sarjug and Laddu also, i.e., the sons of Ramlal Yadav, but he could not. give any description of the details of the documents and the properties. D.W. 21 Shashi Kant Sharma has proved a Canal Purcha marked Ext. C/ 36. D.W. 22 Jagarnath Sharma has proved the deed of gift executed by Sukhdeo in favour of Laldev, but it stands marked X 4 for identification. D.W. 23 Ram Chandra Sah has also stated that two branches in the family of the parties were separate from each other.
10. Thus, it appears that a large number of documents have been filed and so far as the documents on behalf of the plaintiffs are concerned, some rent receipts have been filed in order to show that the rent receipts were granted jointly. On the other hand, rent receipts have been filed on behalf of the defendants to show that the rent receipts were granted separately also. Further, the defendants have admitted that Jamabandi was not split and no such paper has been produced to show that there was an order of splitting up of Jamabandi after the partition. However, from the entire evidence, it appears that though there was no formal partition between the parties, the parties were dealing with the properties separately from time to time. Many of the acquisitions have been made in favour of different defendants mostly in favour of defendant No. 1 Sukhlal. So far as plaintiffs are concerned, they alleged that Sukhlal was the Karta of the family and he was making this acquisitions from the joint family properties. So far as the existence of the properties is concerned, there cannot be any doubt about it that the family had nucleous and some acquisition was made before partition as classified by them. The existence of sufficient nucleus is not in dispute but the main question is whether these acquisitions were made separately by the parties. It appears that it is admitted case that Sukhlal was in service at Bihata and he had some personal income. It also appears that the families were pursuing their business and the cultivation separately, though there was no formal partition. The learned trial Court has held that the plaintiffs had failed to prove the jointness in the family and therefore, in spite of the fact that there was no convincing evidence on behalf of the defendants showing partition of the property as claimed by them, the learned trial Courts has refused to accept the plea of the plaintiffs regarding continuance of jointness.
11. In this connection, it has been rightly submitted on behalf of the appellants that so far as the question of onus is concerned, in the Hindu law there is presumption of jointness between close agnates and it is the duty of the party who claims partition to prove this fact, but the learned trial Court has not approached the issue from this point of view. It is true that there is presumption of jointness in Hindu Mitakshara family, but at the same time is also clear that the presumption of jointness becomes weaker and weaker with the passage of time. It is obvious that the presumption of jointness between two brothers is greater than the presumption of jointness between two cousin brothers or the second cousin brothers. In the present suit, there is no dispute about it that both the parties are the descendants of two brothers, namely, Tulsi Yadav and Gopi Yadav, and the suit has been brought by the grand-sons of Tulsi Yadav against the grand-sons of Gopi Yadav. Therefore, it cannot be said that there is same extent of presumption of jointness between the plaintiffs and the defendants in this case. It is very natural that by passage of time, there start disruption in the family. Therefore, the standard laid down by the Hindu Law is that if the parties do not partition their properties by metes and bound through the registered documents or by filing a suit or obtaining a decree for partition, but they divided their properties amicably by an agreement and if there is intention on the part of the parties to partition, there is disruption in the family and the jointness cannot be treated in existence. In the present case also, though the defendants have failed to prove that there was partition in the joint family at a particular time in a particular year in a particular manner, it appears from the evidence of the plaintiffs themselves as observed by the learned trial Court that the family had their separate business and one had nothing to do with the affairs of the others. It is, therefore, clear that there was division of the property to some extent and the different branches might have been cultivating their lands separately according to their convenience, but there is no evidence of complete partition. Merely because Chaukidari receipts have been granted separately or that Canal Purchas have been granted separately or that even rent has been paid separately, it cannot be said that it was a complete partition. Therefore, the finding of the learned trial Court does not appear to be correct because it appears that the parties were having their separate mess and separate business, it will be treated as a case of complete partition by metes and bounds. The defendants have failed to state as to what separate residence is occupied by them and which residence is occupied by the plaintiffs. It shows true though they might have been running their mess separately or might have been cultivating their land separately, there was no complete partition in the family which can be termed as partition by metes and bounds. So far as acquisitions are concerned it appears that Sukhlal was in private service and was having some income. He had also share in the family property and therefore, it is not strange that he purchased some properties from his personal income and it had nothing to do with the plaintiffs. Therefore, so far as separately acquired properties of the defendants detailed in Schedule-II are concerned, these properties cannot be partible properties, but so far as the property of Schedule I is concerned it is obvious that there was no partition by metes and bounds and if the partition is affected it is in the interest of both the parties; otherwise there may be confusion as to which property belongs to which party. It is so because there is no document in existence to show that a particular land was attached with a particular party. Certainly, the mode of partition has also not been disclosed by the defendants whether the partition was through intervention of Panchas or through memorandum of partition or through a decree. In partition suit, their separation of parties in mess and business cannot be treated as proof of complete partition.
12. In the circumstance, the findings of the learned trial Court that since there was a partition in the family, the plaintiffs are not entitled to a decree for partition appears to be incorrect and it is because of the wrong approach of the issues by the learned trial Court. Accordingly, this appeal is allowed in part. The judgment and decree of the trial Court, are hereby, set aside.
13. It is, hereby, ordered that the suit of the plaintiffs appellants be decreed to the effect that the plaintiffs-appellants are entitled to partition of half share in Schedule I property. The partition shall be effected by starting a final decree proceeding in the matter. The appeal is, accordingly, allowed in part on contest with cost against the respondents.