FIRST APPEAL No. 197 OF 1987
Against the Judgment and Decree dated 27.02.1987 passed by Sri Subhash
Kumar Singh, Subordinate Judge IVth, Vaishai at Hajipur in Partition Suit
No.147 of 1983.
JOGINDER BHAGAT & ORS. .......... Plaintiffs-Appellants
Versus
JAI NARAYAN BHAGAT & ORS. ......... Defendants-Respondents
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For the Appellant : Mr. Amarnath Gupta, Advocate
For the Respondents : Mr. Rajendra Kishore Prasad Advocate
Dated : 7th day of October, 2010
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar (1) The plaintiff-appellants have filed this First Appeal against
Sahoo, J.
the Judgment dated 27.02.1987 and the decree following thereupon
signed on 24.03.1987 by Sri Subhash Kumar Singh, the learned
Subordinate Judge IVth Vaishali at Hajipur dismissing the plaintiff suit
for partition.
(2) The plaintiff-appellants filed the partition suit No.147 of
1983 alleging that both the parties had a common ancestor
Raghunandan Bhagat. The said Raghunandan Bhagat had 4 sons,
namely, Ram Khelawan Bhagat, Parmeshwar Bhagat, the defendant
No.1, Rameshwar Bhagat, the plaintiff No.1 and Gorakh Bhagat, the
plaintiff No.2. Ram Khelawan Bhagat died in 1947 leaving behind 2
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sons, Brahmdeo Bhagat and Jagdeo Bhagat. The widow of Brahmdeo
Bhagat and his two sons Chandrika Bhagat and Surajdeo Bhagat are
plaintiff No.3, 4 and 5. The second son of Ram Khelawan Bhagat,
namely, Jagdeo Bhagat is plaintiff No.6 and his 4 sons are plaintiff
Nos.7 to 10. Parmeshwar Bhagat has two sons, Jai Narayan Bhagat
and Vishwanath Prasad Chauhan. Parmeshwar Bhagat is defendant
No.1 and his two sons are defendant No.2 and 3. The two sons of
Rameshwar Bhagat, namely, Goginder Bhagat and Harinder Bhagat
are plaintiff No.11 and 12. The 5 sons of Gorakh Bhagat are plaintiff
No. 13 to plaintiff No.17.
(3) According to the plaintiff, Raghunandan Bhagat died 60
years ago and Ram Khelawan Bhagat died in 1947 and since then
defendant No.1, i.e., Parmeshwar Bhagat became the Karta of the
joint family. Some of the members of the joint family joined Govt.
service and, therefore, although they separated their establishment
but the mess and business at Hajipur was joint. For convenience,
the parties also separated their cultivation and mess in 1978 but
there is no partition by metes and bonds. Defendant No.1,
Parmeshwar Bhagat was employee in the Health Deptt. of State
Govt. and was posted at Hajipur. The joint family acquired by
registered deed of lease Schedule II land on 04.04.1950 out of the
joint family income and fund. The family is Mali by caste which is a
good source of the joint family income which was used to be
deposited with the defendant No.1. Out of the joint family funds,
bricks were manufactured and houses, pacca well and temples were
constructed. The acquisitions in the family were made by plaintiff
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No.1, 2 and 6 and the husband of plaintiff No.3 and defendant No.1.
Therefore, they each have got 1/5th share in the joint family property
acquired after the year 1950 which has been described in detail in
Schedule II of the plaint. Each branch of sons of Raghunandan
Bhagat has got 1/4th share in the ancestral properties detailed in
Schedule I of the plaint. There has been no partition by metes and
bonds between the parties. The plaintiffs demanded for partition
which was refused. Hence the suit was filed.
(4) The defendant No.1 filed a contesting written statement.
Besides taking various legal pleas, the defendant No.1 mainly
contended that after the death of Raghunandan Bhagat, all his sons
separated themselves, so defendant No.1 was never karta of the
alleged joint family. He was in service since 1948. The properties
acquired under registered deed of lease dated 04.04.1950 is his self-
acquired properties. He acquired the same from the savings of his
salaries in the state of separation. The plaintiffs have got no concern
as the plaintiff never paid a single paise to the defendant No.1 for
acquisition of the said property. No property has been acquired by
the plaintiff Nos.1,2, 6 and husband of plaintiff No.3 with defendant
No.1 as such the claim of 4/5th share in Schedule II properties is
wrong. However, so far Schedule I properties are concerned, the
defendants admitted that the said property may be partitioned since
it is joint family property.
(5) The learned Court below framed as many as 7 issues. The
main issues relating to partition regarding Schedule I and Schedule II
properties are Issue No.4, 5 and 6 which are as follows :
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Issue No.4 – Is the plaintiff entitled to a decree for partition
as claimed ?
Issue No.5 – Is the suit hit by provisions of the Consolidation
Act?
Issue No.6 – Is the Schedule II land is the self acquired
properties of defendant No.1?
(6) The other issues are formal issues.
(7) After trial, the learned Court below came to the conclusion
that except the house on plot No.1865 and 1870 of Schedule I land
and plot No.1856 of Khata No.469 of Schedule II properties, the
other properties mentioned in Schedule I and Schedule II are outside
purview of the suit because of the fact that the consolidation has
started in the same village. In this connection, Notification under
Section 3 of the Bihar Consolidation and Prevention of
Fragmentation Act was published on 10.09.1975. The learned Court
below so far Schedule I property which were not covered by the
notification held that there has been previous partition. So far
Schedule II properties which is not affected by consolidation
proceeding held that it is self-acquired property of defendant No.1.
Accordingly, the suit is dismissed.
(8) The learned counsel for the appellants submitted that the
learned Court below has wrongly dismissed the plaintiff suit, although
the defendants admitted that so far Schedule I properties are
concerned, it is joint family property and they have got no objection
for partition. The learned counsel further submitted that the finding
of the learned Court below regarding Schedule II property is
concerned is also based on no evidence and that the learned Court
below has wrongly found that Schedule II property is self-acquired
property of defendant No.1. According to the learned counsel, the
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parties admitted that they separated in the year 1957 according to
Ext.3 and, therefore, admittedly prior to 1957, the family was joint
and any acquisition prior to 1957 will be presumed to be the
acquisition of the joint family. It is admitted fact that Schedule II
property was acquired by registered deed of lease in the name of
defendant No.1 in 1950, i.e., prior to separation between the parties
in 1957 but the learned Court below has wrongly found this against
the plaintiff and dismissed the suit. On these grounds, the learned
counsel submitted that the impugned Judgment and Decree are liable
to be set aside.
(9) On the other hand, the learned counsel for the respondent
submitted that there is no illegality in the impugned Judgment and
Decree. After considering the evidences, the learned Court below
has rightly dismissed the plaintiff suit for partition.
(10) In view of the above contentions of the parties, the
following points arises for considered in this Appeal :
(i) Whether the plaintiff-appellants have got unity of title and
possession over Schedule I property ?
(ii) Whether the Schedule II properties is joint family
properties and the plaintiffs have got unity of title and
possession over the same or whether Schedule II property
is self-acquired property of defendant No.1 as claimed by
him ?
(iii) Whether the impugned Judgment and Decree are
sustainable in the eye of law.
(11) So far Schedule I property is concerned, it is the case of
the plaintiff that according to the convenience, the parties were
separated by mess and cultivation but there had been no partition by
metes and bonds. They were also in separate possession of the
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house constructed by joint family. It may be mentioned here that
except the houses, the other agricultural lands and properties were
affected by the consolidation proceeding. Both the parties admitted
to this fact that the consolidation proceeding is still going on. So far
the houses property of Schedule I standing on plot No.1865 and
1870 are concerned, it is the case of the defendant that they have
got no objection if the properties of Schedule I are partitioned.
Therefore, it is the case of the plaintiff that the properties are joint
and there has been no partition by metes and bonds. The defence of
the defendant regarding Schedule I properties is that he has no
objection if Schedule I property is partitioned. In such view of the
matter, the learned Court below should have decreed the suit for
partition so far Schedule I properties are concerned. From perusal of
the impugned Judgment at paragraph 8 also, it appears that the
learned Court below considering Ext. F/1 and F/2, i.e., the Khatiyan,
came to the finding that the parties have unity of title and possession
over Schedule I land. At paragraph 6 of the impugned Judgment,
the learned Court below came to the conclusion that consolidation
proceeding will not affect the houses on plot No.1865 and 1870 of
Schedule I land. In such view of the matter when there is no dispute
between the parties regarding partition of Schedule I property on plot
No.1865 and 1870 and in view of the fact that the Court below
himself found that the parties have got unity of title and possession
over the same, in my opinion, the Court below could not have
dismissed the plaintiff suit regarding the above two plots of Schedule
I. Therefore, the plaintiff are entitled to 1/4th share for each branch
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of sons of Raghunandan Bhagat.
(12) So far Schedule II property is concerned, the plaintiff’s
case is that it is the joint family property acquired by the defendant
No.1 in the capacity of Karta out of joint family fund. The
defendant’s case is that the said property is the self-acquired
property of the defendant No.1 out of savings from his salaries. To
prove the respective cases, the parties have adduced evidences in
this regard. The learned counsel for the appellants submitted that
some of the plaintiff member were also in service and they were
sending money to the defendant No.1 and further said that the family
had their ancestral business of decoration. Out of the income of the
family, business and the salary money, the defendant No.1 acquired
the said property. On the contrary, it is submitted that the other
family members in the branch of plaintiff joined their service in 1951
and in fact there was no such family business and the defendant
No.1 had acquired the property mentioned in Schedule II out of his
own savings from his salary in his own name.
(13) The plaintiff has examined 13 witnesses. It may be
mentioned here that now the purview of this case is very limited, i.e.,
whether Schedule II property is self-acquired property or joint family
property. P.W.1 is formal. P.W.2 has stated that the family
separated themselves 26-27 years ago. Their caste profession was
Mali. The income from that profession was cloth, utensil etc. and the
income was always with defendant No.1. Out of the said income,
some lands were acquired and the parties also constructed houses.
Therefore, from perusal of the evidences of this witness, it appears
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that in general term, he has stated about the caste profession.
P.W.3 is formal. The evidences of P.W.4 is also in the same line as
that of P.W.2. P.W.5 is formal. P.W.6 is plaintiff No.2. At paragraph
17 of his cross-examination, he has clearly admitted the fact that
there was no savings out of the income of the joint family lands and
whatever the savings was there it was out of the salary and the land
was acquired out of the said savings. Now, therefore, the plaintiff
admitted that the property described in Schedule II was acquired out
of the savings of salary. It may be mentioned here that he joined
the service in 1951, it is admitted case that defendant No.1 joined
the service in 1948 and he was posted at Hajipur. P.W. 7 to 9 are
formal. The other witnesses are on the point of jointness.
(14) From the above discussions of evidences of the plaintiff,
it appears that there is no evidence regarding nucleolus or joint
family fund. Except the general evidence that the parties were giving
money to the defendant No.1 and that the family have income from
caste profession, there is no other evidence. What was the income
from caste profession and what was the savings out of that income is
also not specified. Admittedly, the property stands in the name of
defendant No.1. The registered deed of lease dated 04.04.1950, i.e.,
Ext.’F’ is in the name of defendant No.1. In such circumstances to
render the property joint the plaintiff’s duty was to adduce evidence
that the family was possessed of some property with the income of
which the property could have been acquired. Since the document is
in favour of the defendant, there can be no legal presumption that
the property is joint family property. It can only be proved by
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evidences that the family possessed some joint property which from
its nature and relevant value may have formed the nucleolus from
which the property in question may have been acquired. If it is
proved so then the burden will shift to the party to prove that it is
self-acquisition acquired without the aid of the joint family. In the
present case as discussed above, except the general statement and
evidences, there is no evidence to prove either existence of joint
family nucleolus or found. On the contrary, the plaintiff himself
admitted that there was no savings from the joint family property
and the property was acquired out of the savings from salary. It is
admitted case that except defendant no.1, nobody was in service in
1950.
(15) In view of the above discussion, I find that the plaintiffs
have failed to prove that Schedule II property is joint family
property. On the contrary, I find that the defendant has been able to
prove that the said property is his self-acquired property. I,
therefore, find that so far Schedule II property is concerned, the
plaintiff have got no unity of title and possession. The finding of the
learned Court below on this point is, therefore, confirmed.
(16) In the result, the Appeal is allowed in part. The
impugned Judgment and Decree are modified to the extent that the
plaintiff suit is decreed so far Schedule I property is concerned and
dismissed so far Schedule II property is concerned. In the facts and
circumstances of the case, the parties shall bear their own costs.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
Dated 7 th October, 2010
N.A.F.R./ Sanjeev
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