JUDGMENT
M.Y. Eqbal, J.
Page 1997
1. This appeal at the instance of the defendants-appellants is directed against the judgment and decree dated 2.2.85 passed by the Additional District Judge, Singhbhum at Chaibasa in T.A. No. 11/82 whereby he has reversed the judgment and decree dated 27.3.82 passed by the Subordinate Judge, Chaibasa in Title Partition Suit No. 25/80 and decreed the suit.
Page 1998
2. The plaintiffs-respondents filed the aforementioned suit for partition of the properties described in Schedule ‘B’ and for ‘C’ of the plaint and for carving out 1/4th share out of the suit property. Plaintiffs’ case, inter alia, is that both parties are the defendants of one common ancestor, Bidu Mahto who had four sons, namely, Gadai Mahto, Akhu Mahto, Bhikhari Mahto and Janardan Mahto. Gadai Mahto pre deceased his father, Bidu Mahto and left behind him a son named Baidyanath Mahto who is defendant No. 1, Bhkihari Mahto is defendant No. 2 and Janardan Mahto is the plaintiff. It is alleged by the plaintiffs that Bidu Mahto died 25 years ago leaving behind three sons Gadai Mahto, Bhikhari Mahto and Janardan Mahto and a grand son, Badyanath Mahto. After his death his sons and grand son inherited the property described in Schedule B of the plaint and they have been coming in possession thereof without any partition by meets and bound. They, however, cultivated most of the lands separately according to their convenience. It is alleged that Schedule B property were recorded jointly in the name of the plaintiffs, defendant No. 1 and 2 and late Akhu Mahto the father of defendant Nos. 3, 4 and 5 under khata No. 87 of the present survey of 1961. Their separate possession has been noted in the remark column of the said khatiyan and they have been cultivating the land as per their convenience. It is further alleged that Akhu Mahto, one of the sons of Bidu Mahto died about 10 years ago leaving behind his sons. So far Schedule C property is concerned, plaintiffs’ case is that those properties had been acquired by the parties jointly and they have been coming in possession of the same. The plaintiffs, accordingly, claimed-1/4th share in Schedule B and C property.
3. The defendants appellant Nos. 1 to 3, 5 and 6 filed written statement and contested the suit. According to the defendants the suit is not maintainable and the plaintiffs have got no cause of action for the suit. Defendant’s is that Bidu Mahto died 31 years ago and about three years after his death there had been amicable partition between the parties in which the lands of village Upperbera and the suit property described in Schedule B of the plaint were partitioned between them in equal shares. The exact area falling in their respective shares, however, varied according to the quality of the land allotted to each of them. It is stated that the lands allotted to them were shown in their possession in the remark column of the khatiyan. The entry showing some of the lands of khata No. 87 as joint in the present survey khatiyan is erroneous. Further case of the defendants is that as there was previous partition, the claim of the plaintiffs for fresh partition is not maintainable. It is asserted that if it is found that the lands are to be partitioned again, the same cannot be done unless the lands of khata No. 15 of Mouja Upperbera are also taken into account in giving due share to the parties. So far Schedule C property is concerned, the defendants’ case is that it is recorded in the individual names of one or other defendants and the same is not joint family property.
4. The trial court framed the following issues for consideration and decided all the issues in favour of the defendants and dismissed the suit. The issues are:
(i) Is the suit, as framed, maintainable?
(ii) Has the plaintiffs got a valid cause of action for the suit.?
(iii) Is the suit barred by the law of limitation?
(iv) is the suit bad for partial partition?
(v) Is there any unity of title and possession between the parties over the properties described in Schedule B and C of the plaint?
Page 1999
(vi) Is the plaintiffs entitled to a decree for partition, if so, to what extent and with respect to what property?
(vii) To what relief or reliefs, if any, is the plaintiffs entitled to?
5. Aggrieved by the said judgment and decree, the plaintiffs preferred Title Appeal No. 11/82. The appeal was heard by the Additional District Judge, Chaibasa who allowed the appeal and reversed the finding recorded by the trial court by decreeing the suit and hence this appeal by the defendants-appellants.
6. This appeal was admitted for hearing on 31.7.96 on the following substantial questions of law:
(i) Whether the lower appellate court was legally correct in reversing the judgment and decree of the trial court only on the ground that there was no equal share in the alleged partition?
(ii) Whether the lower appellate court failed to consider the reasoning of the trial court on the basis of oral evidence adduced on behalf of the parties for coming to the conclusion that there was a previous partition in between the parties.?
(iii) Whether in view of the clear admission by the plaintiffs-respondents and his witnesses that after the death of Bidu Mahto, both the parties have come in separate possession of the properties described in Schedule B of the plaint, it is not enough to hold that there was a previous partition.?
7. The trial court while deciding issue Nos. 5 and 6 has discussed the entire evidence both oral and documentary and recorded a conclusive finding on those issues. The trial Court firstly found that none of the witnesses examined on behalf of the plaintiff’s belongs to the same village. The trial court while discussing the evidences, noticed the admitted fact that the parties have been in separate possession of their respective lands and they are cultivating their lands separately since more than 30 years. The trial court also found that their possession has been separately recorded in the survey records of rights. On the basis of the evidence of the plaintiff’s witnesses the trial court held that there was separation between both the parties as about one or two years after the death of Bidu Mahto they began to reside separately and have been cultivating their lands separately and they are in separate possession of their lands for the last 30 years. The trial court, also discussed the evidence of the defendants’ witnesses.
8. The appellate court formulated two points for consideration:
(i) whether the parties had already effected partition by metes and bounds with respect to their ancestral property
(ii) whether the properties mentioned in Schedule B and C of the plaint are liable to be partitioned and, if so, whether the plaintiffs are entitled to a decree for partition of 1/4th share in Schedule D and C properties.
9. The appellate court took notice of the fact that Bidu Mahto died in between 1950 and 1955 and his first son, Gadai Mahto pre-deceased him leaving behind his son Baidyanath Mahto. The last survey operation took place round about in 1960 when the ancestral properties of the family i.e. Schedule B properties were recorded under khata No. 87 of village Chotagamaria in the names of Bidu Mahto, Akhu Mahto, Bhikhari Mahto and Janardan Mahto, each having 1/4th share. During the same Page 2000 revisional survey settlement operation khata No. 90 of village Chotagamaria was prepared in the name of Bhikhari Mahto alone and khata No. 1 of village Chotagamaria was prepared in the names of Akhu Mahto and Janardan Mahto jointly with equal shares. Khata No. 15 of village Upperbera was also the ancestral property of the parties but the same was acquired by the Government and compensation was paid to the parties. The appellate court proceeded on the basis that since the defendants are taking the stand of previous partition as against the presumption of jointness it is for the defendants to prove that partition had actually taken place by metes and bounds in the family after the death of Bidu Mahto. So far the land of khata No. 15 is concerned which was acquired by the Government, the appellate court held that the parties were in separate possession of the land of that khata in unequal share. So far khata No. 87; which is Schedule B land; is concerned, the appellate court found that the said land stands in the names of all the four co-sharers in equal shares. Out of 20 plots seven plots have been shown in joint possession and 13 plots have been shown in possession of individual co-sharers. According to the appellate court, therefore, unequal distribution of lands is not the proof of partition. So far Schedule C land is concerned, the appellate court has held that Schedule C property is also joint family property and is liable to be partitioned among all the four co-sharers.
10. At the very outset, I must indicate here that although scope of second appeal is very limited but when first appellate court which is the final court of facts reversed the finding of the trial court without meeting the reasoning and without discussing the evidence, such finding cannot be sustained in law. Similarly, if the finding of the appellate court, prima facie, appears to be perverse in law, then in such case also such finding can be interfered with in second appeal. Considering this settled principle of law, I will first examine the pleadings of the parties and the evidence adduced by them.
11. In the case of Marry Wood and Ors. v. James Ebenezer Haines AIR 1918 Privy Council-320 [the Privy Council held that regarding credibility of witnesses, appellate Court will differ from the trial Jude only in exceptional circumstances. However, regarding documentary evidence, the case is different]. Their Lordships observed:
In the Appellate Division, Meredith, C.J.O., in a long and careful judgment relies upon discrepancies between evidence given by the plaintiff in his examination on discovery and evidence he gave at the trial and upon documentary evidence found in the certificates and other documents relating to the matter as leading to the conclusion that the trial Judge was wrong in his view of the evidence and in his opinion as to the credibility of the witnesses, and that the plaintiff failed to make out his case. Their Lordships have heard with immaterial short exceptions the whole of the evidence in this case read, and are, therefore in a position as favourable as was the Appellate Division for forming an opinion in this matter. They are not impressed by the discrepancies to which allusion is made. It is to their mind plain that the plaintiff under the stress of cross-examination was led to assessment year, for instance, that he made this or that mistake, when in fact he had made, no mistake at all. They see no reason to doubt that the plaintiff was telling a truthful story. In this they agree with the trial Judge. In this regards the defendant, if it were for their Lordships to from an original opinion as to whether he is to be believed or not, they would not hesitate after regarding his cross-examination through-out, to Page 2001 say that the finding of the trial Judge as to his credibility is right. But the above is not the right way to proceed in a case where the only question is one as to the credibility of witnesses. It must be an extraordinary case in which an appellate tribunal can accept the responsibility of differing as to the credibility of witnesses from the trial Judge who has been and watched them, whereas the appellate Judge has had no such advantage.
12. In the case of Ramjhari Kuer and Ors. v. Deyanand Singh and Ors. A.I.R. 1946 Patna 278, it was held that separate entry in the record of right is by itself not conclusive proof of separation but is only a relevant evidence which may be taken into consideration on the question of separation. Their Lordship held that where the extent of such member’s interest in the estate is not merely specified in record of right but such member is also recorded to be in separate possession over certain plots, the entries in the record of rights are of considerable importance indicating separation in the sense of not only definition of share but also separate possession. Separate possession over properties is a strong piece of evidence to rebut the ordinary presumption of jointness of Hindu family governed by Mitakshara School of Hindu Law.
13. In the case of Mukhram Rai and Ors. v. Chandradeep Rai and Ors. A.I.R. 1936 Patna 68, His Lordship Fazl Ali. J. observed that where parties have been in possession of and exercising rights of ownership over separate plots of land for a long time the Court might well presume that these lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude their being re-partitioned. His Lordship further observed:
Both the Court below have held that the parties separated in status many years before the suit and the lower Appellate Court has also disbelieved the defence case that there was a partition about 90 years ago. The decision of the first Court is that the defendants have succeeded in proving that the plaintiff had been separate from them in family status, in ownership of properties and in possession except in respect of the lands admitted in the written statement to be held by both parties in common tenancy. The learned District Judge affirms these findings but as he has also definitely found that there was no formal partition between the parties, the decree passed by him is assailed on the ground that, even co-sharers, though separate in status, may claim partition of the family properties which have not been partitioned by metes and bounds. The facts of the present case, however seem to me to be somewhat similar to the facts of the case of 53 Bom 213(1), which was decided by the Privy Council in 1928. In the present case the parties have been in possession of and have been exercising rights of ownership over separate blocks of land for such a long time and in such a manner that a Court might well presume that these lands have already been divided and the rights of parties defined in regard to them in such a manner as to preclude their being re-partitioned. But ion any event the finding of the learned District Judge that the defendants have acquired title to the lands of which they have been in exclusive possession for more than 12 years seems to me to be sufficient, to dispose of his appeal.
14. Similar question raised in the case of Radhamoni Bhuiyanin and Ors. v. Dibakar Dhuiya and Ors. was whether unequality of division of share lead to the conclusion that there had not been partition. His Lordship observed:
Page 2002
It is now well steeled that although there is a presumption of jointness in a Hindu family but that presumption is stronger where the parties are full brothers but such presumption gets weaker and weaker as time passes and parties in third or fourth generation are found to be in separate possession of the land. From a persuant of the Khatian, exhibits C and C/1, it appears that no plot, whatsoever, has been shown to be joint.
Their Lordship further discussed the earlier views of the Supreme Court and other High Courts as under:
As noticed hereinbefore, the circumstances of partition are in favour of the defendants. In Ramjhari Kuer. v. Deyanand Singh reported in AIR 1946 Patna 278 it has been held by the Division Bench of this Court as follows:
it is true that the fact that a member’s share in a revenue paying estate has been separately defined in the collectorate land registration records and the record of rights, is by itself not conclusive proof of separation but is only relevant evidence which may be taken into consideration on the question of separation. But where the extent of such member’s interest in the estate is not merely specified in the record of rights but such member is also recorded to be in separate possession over certain plots, the entries in the record of rights are of considerable importance indicating separation in the sense of not only definition of shares but also separate possession. Separate possession over properties is a strong piece of evidence to rebut the ordinary presumption of jointness of Hindu family governed by Mitakshara School of Hindu Law.
15. In the instant case, the Appellate Court took notice of Exhibits 1 to 1/g, which arc the rent receipts standing in the names of the parties separately. Exhibits 2 to 2/c are the certified copies of the khatians of the suit lands. In the Khatian Schedule B lands were recorded under khata No. 87 of village Chota Ghamaria in the names of four brothers having 1/4″‘ share. In respect of khata No. 90 of the same village, the lands were, recorded in the names of two brothers having equal shares. It was admitted by the parties that the lands of khata No. 15 of village Upperbera was partitioned among the four co-sharers whereby some more lands were given to Baijnath Mahto, the eldest brother. Despite the admission made by the parties regarding their separate possession of the suit lands since after the death of Bidu Mahto, the Appellate Court took a view that the finding recorded by the trial Court cannot be sustained on two grounds, firstly that the burden was upon the defendants to prove by conclusive evidence that partition had taken place by metes and bounds and secondly that the possession of unequal shares of land by the parties indicate that the partition did not take place.
16. In the light of the aforesaid principles of law referred to herein above and also having regard to the evidence adduced by the parties admitting to be in separate possession of their respective shares of land for the last more than two decades, I am of the view that the appellable Court was not justified in reversing, the finding arrived at by the trial court. The finding of the appellate court, therefore, prima facie appears to be perverse in law and cannot be sustained.
17. For the aforesaid reasons, these appeals are allowed and the impugaed judgment and decree passed by the appellate. Court is set aside and that of the trial Court is restored. However, in the facts of the case, there shall be no order as to costs.