Back
PATNA HIGH COURT
B.D.Singh and S.K.Choudhuri JJ.
Ramsurat Devi
Versus
Satraji Kuer
Appeal from Original Decree No. 503 of 1964 ;
Decided On : AUGUST 20, 1974
PARTITION SUIT - Claim for partition of lands - Disallowance of claim by trial court - Appeal and cross-objection - Issues: (i) Maintainability of suit; (ii) Cause of action; (iii) Partial partition; (iv) Entitlement to partition; (v) Other reliefs - Held: (i) Suit maintainable; (ii) Cause of action exists; (iii) Partial partition not permissible; (iv) Plaintiffs entitled to partition of lands covered by khata Nos. 1002 and 1070; (v) Cross-objection allowed, plaintiffs not entitled to partition of lands covered by khata No. 1002.
Fact of the Case:
Plaintiffs, Maharaji Kuar and her daughter's son Satyadeo Choubey, instituted a title suit for partition of lands measuring 10 bighas 2 kathas 5 dhurs and 3 bighas 14 kathas 8 dhurs, respectively, situated in village Ratanamala, P. S. Majhowa district Champaran. The plaintiffs claimed 1/4th share in the land covered by Schedule I and half share in the lands covered by Schedule II. The defendants, Janardan Pandey and Satraji Kuar, filed cross-objections against the findings of the learned Subordinate Judge, wherein he had decreed some of the claims of the plaintiffs.
Finding of the Court:
The court held that the suit was maintainable, cause of action existed, partial partition was not permissible, and the plaintiffs were entitled to partition of lands covered by khata Nos. 1002 and 1070. The cross-objection was allowed, and the plaintiffs were held not entitled to partition of lands covered by khata No. 1002.
Issues: (i) Maintainability of suit; (ii) Cause of action; (iii) Partial partition; (iv) Entitlement to partition; (v) Other reliefs
Ratio Decidendi: The court relied on the following principles of law in reaching its decision: * The procedure in allowing the parties to adduce evidence on the point, which arose on the evidence led by the parties, but were not raised in the pleadings or issues was irregular, and should not be allowed without amending the pleading and raising necessary issues. * No amount of evidence could be looked into upon the plea which was never put forward. * Where a claim was never made in the pleading no amount of evidence could be looked into. * Objection as to non-joinder of parties not having been raised at the earlier opportunity before settlement of issues was deemingly waived. * It was not open to the court of fact to dissect an admission in parts arising out of the pleadings but the court ought to have taken the whole of it into consideration. * An admission made in a written statement might be taken as a whole or not at all.
Final Decision: The appeal was dismissed, and the cross-objection was allowed. The judgment and decree of the court below were modified to the extent that the plaintiffs had no right to claim partition of the lands covered by khata No. 1002. The parties were directed to bear their own costs.
B.D.SINGH, J.
1. This appeal was Instituted by one of the plaintiffs, Most. Maharaji Kuar against a portion of the judgment and decree of the learned Subordinate Judge disallowing a part of the claim of the plaintiffs in Partition Suit No. 96 of 1962, instituted by her along with her daughters son Satyadeo Choubey, respondent No. 13. Janardan Pandey, who was defendant No. 2 in the suit (respondent No. 2 before us) had also filed cross-objection against those findings of the learned Subordinate Judge, wherein he had decreed some of the claims of the plaintiffs. This judgment will, therefore, govern both the appeal and the cross-objection. During the pendency of the appeal the sole appellant died. Her daughter Ramsurat Devi was substituted in her place as the appellant, while her other heirs were placed in the category of the respondents by order dated 20-5-1971. Likewise, Janardan Pandey, respondent No. 2, who had filed cross-objection, had also died during the pendency of this appeal and his heirs Anrawati Devi and another were substituted by order dated 2-9-1968.
2. Maharaji Kuar and her daughters son, Satyadeo Choubey, as plaintiffs 1 and 2 respectively had instituted the said title suit on 18-8-1962 for partition of the land measuring 10 bighas 2 kathas 5 dhurs of land comprised under various plots under khatas, namely, 209, 1000, 1001, 1002, 1009, 1010 and 1070 situate in village Ratanamala, P. S. Majhowa district Champaran, detailed under Schedule I of the plaint, as also for partition of land measuring 3 bighas 14 kathas 8 dhurs comprised under various plots under Khata Nos. 76, 362, 363, 364 and 365, situate in the same village, fully described under Schedule II of the plaint.
3. In the plaint, the plaintiffs had impleaded respondents 1 to 4 as defendants first party and respondents 5 to 12 as defendants second party. The plaintiffs had claimed l/4th share in the land covered by Schedule I and half share in the lands covered by Schedule II. Their case in brief was that one Mahesh Dutt was the common ancestor of the plaintiffs and the defendants first party. Mahesh Dutt had four sons, namely, Bishundeo Pandey, Kishundeo Pandey, Rambadan Pandey and Brahmdeo Pandey. Kishundeo Pandey and Brahmadeo Pandey died issueless in state of jointness, before the revisional survey. Rambadan Pandey also died before the revisional survey leaving behind his son Sarjug Pandey, who also died leaving behind two sons, Sakti Pandey and Ghinawan Pandey (defendant No. 3). Sakti also died before institution of the suit. Bishundeo Pandey, remaining son of Mahesh Dutt, also died after the revisional survey, leaving behind two sons, Kewal Pandey and Awadh Pandey. Kewal Pandey died on 8-8-1953 leaving behind his widow Maharaji Kuar, plaintiff No. 1, and a daughter Ramsurat Devi, who had a son Satyadeo Pandey, Plaintiff No. 2. Awadh Pandey who was initially impleaded as defendant No. 1, also died leaving behind one son Janardan Pandey (defendant No. 2) and one daughter, Satraji Kuar, defendant No. 1. Satraji Kuar had one son Indrajit Shukul, defendant No. 4. The relationship of the plaintiffs and the defendants first party would be clear from the following genealogical table.
MAHESH DUTTA
Bishundeo Kishundeo Rambadan Brahmadeo
Pandey Pandey Pandey Pandey
Sarjug Pandey Sakti Pandey Ghinawan
Pandey
(Defdt. 3)
Kewal Pandey Awadh Pandey
(died on 8-8-53)
Most. Maharaji Kuar
(Plff. 1)
Daughter Janardan Pandey Satraji Kuar
(Defdt. 2) (Defdt. 1)
Satyadeo Indrajit Sukul
(Plff. 2) (Defdt. 4)
4. According to the plaintiffs, ancestral lands under Schedule I of Bishundeo Pandey were not partitioned by metes and bounds although the defendants 1 to 4 separately possessed certain lands for the s
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
