JUDGMENT
S. Ali Ahmad, J.
1. The plaintiff-respondent filed the suit giving rise to the appeal wherein he prayed for declaration of his title and recovery of possession with mesne profit with respect to Plots Nos. 1648 and 1653 under Khata No. 2 situate in Muhalla Choudhary Tola within the Colgong Municipality in the district of Bhagalpur. The trial court gave a decree in favour of the plaintiff-respondent declaring that he has title with respect to 8 annas of the land appertaining to Plots Nos. 1648 and 1663 of Khata No. 2. It, therefore, restrained the defendants from
interfering with the possession with respect to half of the suit land. With regard to the remaining half of the suit land, the trial court dismissed the suit.
2. Two appeals were filed against the decree passed by the trial court; one by the plaintiff and the other by the defendant. The appeal filed by the plaintiff-respondent was numbered as Title Appeal No. 1 of 1974 whereas the appeal filed by the defendant was numbered as Title Appeal No. 9 of 1974. The two appeals were heard together and disposed of by one common judgment whereby Title Appeal No. 1 of 1974 was allowed and Title Appeal No. 9 of 1974 was dismissed. Thereafter only one second appeal has been filed by the defendant assailing the decrees passed in Title Appeal No. 1 of 1974 and Title Appeal No. 9 of 1974. The appeal was listed before me on 7th December, 1978, while I was sitting singly. After hearing the appeal for some time, I referred it to a Division Bench as there appeared to be some inconsistency between the two Bench decisions of this court in the case of Bhairab Prasad Singh v. Birendra Pratap Singh AIR 1950 Pat 1 and in the case of Satruhan Prasad Singh v. Sudip Narain AIR 1955 Pat 408. Incidentally the appeal came before a Bench of which I was a member along with the Hon’ble the Chief Justice. We heard learned counsel for the parties and allowed the appeal in part on 31st July, 1984 saying that reasons will follow later. These are the reasons.
3. According to the plaintiffs case, one Ram Mohan Mandal had three sons, Shital Prasad Mandal, Suresh Prasad Mandal and Satyadeo Mandal. The father and the three sons constituted one joint family and the suit land belonged to them. According to the plaintiffs case there was a partition on 6th April, 1939 by a registered deed. According to that partition Ram Mohan Mandal and the three sons separated from each other. Shital Prasad Mandal came in separate possession of the land allotted to him and shifted to his house at another place. The two other sons, namely, Suresh Prasad Mandal and Satyadeo Mandal continued to remain in joint possession of the properties along with their father and thus there was a notional reunion among them and they constituted a joint family with the intention of remaining joint. It is further said that Satyadeo Mandal died during the lifetime of his father leaving behind his widow and a daughter, who died in April, 1953 and
November, 1954 respectively. Ram Mohan Mandal had executed a will bequeathing his property to Suresh Prasad Mandal in the year 1947 when Ram Mohan Mandal died in state of jointness with Suresh Prasad Mandaf and then his share was inherited by Suresh Prasad Mandal by way of survivorship. In the partition deed the suit lands were allotted to Ram Mohan Mandal. Therefore, after the death of Ram Mohan Mandal, the plaintiff said, it came to Suresh Mandal. But unfortunately trouble arose and there was a proceeding between Shital Prasad Mandal and Suresh Mandal under Section 107 of the Code of Criminal Procedure concerning the land in suit. That proceeding was disposed of by a compromise wherein Shital Prasad Mandal admitted the title and possession of Suresh Mandal in respect of the property which was allotted to Ram Mohan Mandal and Satyadeo Mandal by a partition deed in the year 1939. Subsequently Shital Prasad Mandal also executed a Bazidawa dated 22-8-1952 in favour of Suresh Mandal “disclaiming his title and possession over the land allotted to Ram Mohan Mandal. On 9-8-1960 Suresh Mandal entered into an agreement with Hari Prasad Santhalia, brother of the plaintiff for purchase of the suit land for Rs. 5,000/- out of which Rs. 505/- was paid in advance. Thereafter Suresh Mandal and his son executed a sale deed on 24-8-1960 in favour of the plaintiff and his brother Hari Prasad Santhalia with respect to the suit land and the vendee came in possession over the same. Subsequently there was a partition between the plaintiff and his brother Hari Prasad Santhalia and the suit land fell to the share of the plaintiff.
It is said that Mahadeo Prasad Santhalia, defendant No. 1, who is the eldest brother of the plaintiff had taken a Kobala in the name of his son, defendant No. 2 in respect of half share of the suit properties from one Sheo Nandan Mandal son of Dwarika Mandal. It is said that on enquiry it transpired that Dwarika Mandal had taken a sham and fictitious Kobala earlier from Shital Prasad Mandal with respect to his share in the suit properties. It is said that Shital Prasad Mandal was separate from his father, so he could not have inherited any share out of the inheritance of his father and as such he could not transfer half share which originally belonged to Ram Mohan in favour of Dwarika Mandal. It is further said that after taking of Kobala, defendants Nos. 1 and 2 along with defendant No. 4 started creating
trouble as a result of which a proceeding under Section 145 of the Code of Criminal Procedure was initiated. This proceeding was later on converted into a proceeding under Section 146 of the Code of Criminal Procedure which was decided against the plaintiff. Thereafter the suit giving rise to this appeal was filed.
4. The suit was contested by the defendants first party. They accepted the partition of the year 1939 between Ram Mohan Mandal and his three sons, but according to them the story that Satyadeo Prasad Mandal and Suresh Mandal reunited with their father Ram Mohan Mandal was not correct. According to them, all remained separate. After the death of Ram Mohan Mandal in the year 1947, according to them, the properties were inherited by Suresh Mandal and Shital Prasad Mandal in equal shares and accordingly the suit land fell in the share of both the brothers, who came in possession. It is further said that the land was also partitioned between the two brothers as a result of which Shital Prasad Mandal got the western half and Suresh Mandal got the eastern half of the suit land. With respect of the Bazidawa executed by Shital Prasad Mandal, it is said that the same was collusive inasmuch as Shital Prasad Mandal had by then already sold his share to Dwarika Prasad Mandal. With regard to eastern half of the suit plot, it was said that the defendants had acquired title by adverse possession inasmuch as they were in its occupation adversely to the plaintiff and before him, his predecessor-in-interest for more than 12 years.
5. The trial court held that the plaintiff had failed to prove the story of reunion by Suresh Mandal and Satyadeo Prasad Mandal with their father Ram Mohan Mandal. It accordingly held that on the death of Ram Mohan Mandal, Shital Prasad Mandal and Suresh Mandal inherited the properties of their father to the extent of half and half. The story of adverse possession set up by the defendants with respect to eastern half of the suit plot was also not accepted. The trial Court, therefore, decreed the suit to the extent of 8 annas. As stated earlier, the decree passed by the trial Court did not satisfy either the plaintiff or the defendants, Therefore, both of them filed separate appeals which have been disposed of by a common judgment. The lower appellate Court, while dismissing the appeal filed by the defendants held that the defendants have failed
to prove that they had acquired title to the eastern half of the suit plot by adverse possession. It, therefore, dismissed the appeal filed by them. So far as the appeal filed by the plaintiff was concerned, the court of appeal below framed the following proposition : —
“Thus the main question for consideration will be whether the case of reunion and jointness between Suresh and Ram Mohan is correct. If the story is correct, Sital will not inherit any share from Ram Mohan he being a separated son. If on the other hand, the story of reunion and jointness fails then Sital will get half share in the suit land after the death of Ram Mohan.”
Thereafter, it considered the entire evidence in great detail and then held “that the story of reunion as set up by the plaintiff between Suresh and Ram Mohan has been proved in this case and after death of Ram Mohan, Suresh came in possession of the entire suit land and legally transferred the suit land to the plaintiff who came in possession and was subsequently dispossessed by the Section 145 Cr. P. C. order.” On the basis of this finding the lower appellate Court allowed the appeal and decreed the suit in its entirety.
6. Mr. S.C. Ghose, learned counsel appearing for the respondents took a preliminary objection. He urged that there were two appeals before the lower appellate Court and two decrees were passed against the appellant. But the appellant preferred only one appeal and, as such, the same was not maintainable being barred by res judicata. Learned counsel in support of his submission referred to the case of Badri Narain v. Kamdeo Prasad AIR 1962 SC 338. It appears that the matter regarding maintainability of the appeal on account of Section 11 of the Code of Civil Procedure was pointed out by the Stamp Reporter at the time of filing of the appeal. The report was directed to be considered at the time of admission of the appeal. Mr. Justice Madan Mohan Prasad (as he then was) heard the matter in great detail and held that the appeal was not barred by the principle of res judicata. Thereafter, the appeal was admitted. When this fact was pointed out to Mr. Ghose, he said that the order was passed behind his back and without notice to him. It should therefore, not be binding on him. He seems to be right on this point. But there is another difficulty in his way. Similar question arose in the case of Haribans Singh v. Basist Kumar, 1984 B B C J 450: (AIR 1984 Pat 220)(FB).
The learned Judges were of the view that ordinarily two appeals should be filed against two decrees, but it does not follow that a single appeal should, in all circumstances, be dismissed as not maintainable. According to the learned Judges, if the two reliefs dealt with by the lower appellate court in a separate title appeal were prayed for in a single suit then the prayer of the plaintiff in one appeal for decreeing the suit in full should be entertained and the second appeal should be treated as a consolidated appeal. The learned Judges further said that the appellant had paid full court-fee and had annexed both the two decrees passed by the court of appeal below. According to them, therefore, one appeal, in these circumstances, was competent. The aforesaid case fully covers the case before us. Here also the appellant has paid court-fee on the full value of the suit and has in the aggrieved portion of the memorandum of appeal mentioned both Title Appeal No. 1 and Title Appeal No. 9 of 1974. In this circumstance, in my opinion, the appeal cannot be held to be not maintainable on account of Section 11 of the Code of Civil Procedure.
7. Mr. Chunni Lal in support of the appeal contended that the proposition of law framed by the court of appeal below that in case the story of reunion and jointness was proved then Shital Pd. Mandal will not inherit any share from Ram Mohan Mandal is erroneous in law. He urged that having accepted the story of reunion as set up by the plaintiff between Suresh Mandal and Ram Mohan Mandal, the Court of appeal below should have decreed the suit to the extent of 8 annas in the two suit plots. His argument is that in the Mitakshara School of Hindu Law the son and the grandson get unobstructed right by mere birth to the separate property of the grandfather notwithstanding partition. Learned counsel in support of his argument has placed reliance on the decision reported in AIR 1950 Pat 1 (supra). It will be useful to quote a passage from that decision : —
“The principle of Mitakshara is that the son and grandson get ‘unobstructed’ right (apratibandha daya) by mere birth to the separate property of the grandfather. If the text of Mitakshara Chap. I, Section 5, is closely examined, it will be apparent that partition does not annul the grandson’s right or convert it into an obstructed right, that the existence of a son or united brothers would not defeat k, although both the son and grandson are
separate from their ancestor and also from one another.
Then again in paragraph 13 of the judgment it has been said as follows : —
“The conclusion, therefore, emerges that partition merely adjusts or resolves joint right into several rights, that it frees the father’s share from any present proprietary right on the part of the divided son but it could not annul the final relation nor the right of succession incidental to that relation.”
This case fully supports Mr. Chunni Lal. Mr. Ghose appearing on behalf of the respondents, however, contended that this Court in another case reported in AIR 1955 Pat 408 (supra) has taken a contrary view inasmuch as it has been held that the self-acquired property of the father devolves on his undivided son to the exclusion of his separated son. It was, therefore, contended that Shital Pd. Mandal was separate from his father, Ram Mohan Mandal. Therefore, Suresh Mandal, the son, who was joint with Ram Mohan Mandal at the time of his death, will take the property to the exclusion of Shital Prasad Mandal. Mr. Ghose also urged that the two cases, namely, AIR 1950 Pat 1 and AIR 1955 Pat 408 (supra) have laid down inconsistent propositions of law. He said that the case should, therefore, be referred to a larger Bench to resolve the inconsistency. We seriously considered this request of Mr. Ghose but we did not think it necessary to refer the case to a larger Bench as there was no inconsistency as such. The general rule, according to the Mitakshara Law is that the son and the grandson get an unobstructed right by mere birth to the separate property of the grandfather. Partition does not annul this right. As pointed out in the case reported in AIR 1950 Pat 1 (supra); there is, however, an exception to this general rule and that has been mentioned in the case reported in AIR 1955 Pat 408 (supra) wherein it has been said that the self-acquired property of the father devolves on his undivided son to the exclusion of his separated son and the latter inherits only when there is no undivided son at the time of death of the father. So far as this case is concerned, it is not said either by the plaintiff or by the defendants that the lands in suit were the self-acquired property of Ram Mohan Mandal. In that view of the matter the law as explained in the case reported in AIR 1950 Pat 1 will apply to this case and Shital Prasad Mandal along with Suresh Mandal will inherit
the property of Ram Mohan Mandal to the extent of half and half. The plaintiff, who is successor-in-interest of Suresh Mandal is, therefore, entitled to 8 annas share in the suit land.
8. Mr. Chunni Lal, learned counsel appearing on behalf of the defendant-appellant next contended that according to his case there was a partition between Shital Prasad Mandal and Suresh Mandal and as a result of this partition western half of the suit plot fell to the share of Shital Prasad Mandal and the eastern half went to Suresh Mandal. He urged that the defendant had acquired title to the land allotted to the share of Suresh Mandal also by way of adverse possession. This point was seriously considered by the trial Court and according to its finding the defendant has succeeded in proving partition as alleged, but the trial Court held that the defendant has failed to prove adverse possession. It, therefore, decreed the suit to the extent of 8 annas. These findings were not challenged before the lower appellate court and they have not been set aside. Therefore, the position is that after the death of Ram Mohan Mandal, the suit plots were inherited by Shital Prasad Mandal and Suresh Mandal to the extent of half and half. There was a partition between the two brothers as a result of which Shital Prasad Mandal got western half of the suit plots and Suresh Mandal got eastern half of the suit plots. Since the defendant’s case of adverse possession has been defeated Suresh Mandal conveyed valid title to the plaintiff with respect to the eastern half of the suit plots. The finding regarding acquisition of right by adverse possession is a pure finding of fact and is not assailable. There is, therefore, no merit in this argument of Mr. Chunni Lal.
9. In the result, the appeal is allowed and the judgment and the decree passed by the Court of appeal below is set aside and that of the trial Court is restored with the only modification that the plaintiff will also be entitled to recover possession of the land in respect of which his title has been declared. On the facts of this case, I will make no order as to costs.
S.S. Sandhawalia, C.J.
I agree.