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1980 Supreme(Pat) 27
PATNA HIGH COURT
Hari Lal Agrawal and Chaudhary Sia Saran Sinha JJ.
Ambika Devi
Versus
Balmakund Pandey
Appeal from Original Decree No. 340 of 1967 ;
Decided On : FEBRUARY 4, 1980
The main legal point established in the judgment is the requirement for successful proof of partition to acquire exclusive title to joint family properties. The court emphasized the significance of exclusive possession and acquisition of properties after the alleged partition in determining the rights of the parties.
Headnote:
Partition - Property Dispute - Bengal properties, Shahabad properties - Partition of joint family properties - Evidence of partition - Exclusive possession - Acquisition of properties after partition - Mesne profits - Appeal allowed, suit dismissed
Fact of the Case:
The plaintiffs filed a suit for partition of joint family properties described in four schedules after alleging differences between the parties and claiming unity of title and possession over the properties. The defendants contested the suit, asserting that the joint family had already separated before the cadastral survey and settlement operation, resulting in the partition of all joint family properties except certain properties. The trial court decreed the plaintiffs' suit, but the defendants appealed the decision.
Finding of the Court:
The court found that the defendants had successfully proved the partition of joint family properties, as alleged by them. The court held that the properties of Schedule 3 were in the exclusive possession of the defendants for more than 12 years prior to the suit, indicating their acquisition of exclusive title. The properties of Schedule 4 were acquired by rehan deeds executed in the name of one of the defendants after the alleged partition. Consequently, the court allowed the appeal, set aside the trial court's judgment and decree, and dismissed the plaintiffs' suit.
Issues: The main issue was whether the defendants had successfully proved the partition of joint family properties, thereby acquiring exclusive title to certain properties. Additionally, the court considered the claim for mesne profits by the plaintiffs.
Ratio Decidendi: The court held that the defendants had proved the partition of joint family properties, leading to their exclusive possession and acquisition of title. The court also determined that properties acquired after the alleged partition were not liable for partition. As a result, the plaintiffs' claim for mesne profits was denied.
Final Decision: The appeal was allowed, the trial court's judgment and decree were set aside, and the plaintiffs' suit was dismissed. No order as to costs was made, and the parties were directed to bear their own costs throughout.
SINHA, J.
1. This is an appeal by defendants Ist Party against the decision of learned Subordinate Judge, Arrah decreeing Title Suit No. 30 of 1963, instituted by the plaintiffs-respondents for partition of the properties described in the four Schedules to the plaint after declaration of title over the properties covered by two of the four schedules, namely, Schedules 3 and 4 to the plaint.
2. The plaintiffs and defendants Ist party, defendant No. 8 being the daughter-in-law of one of the defendants Ist party, hail from a common ancestor, namely, Debi Charan Pandey. The genealogy as given in the plaint, was not disputed before this Court. It would, therefore suffice to say that one Debi Charan Pandey had four sons namely, Sohbat Pandey, Lal Bahari Pandey, Sheo Tahal Pandey and Naubat Pandey. Plaintiff No. 1, Balmakund Pandey undisputedly, having alias name of Mukund Pandey, is the grandson of Lal Behari Pandey. Lakshmi Pandey (Plaintiff No. 2), Rajeshwari Kuer (Plaintiff No. 3), Bhim Pandey (Plaintiff No. 4), Shri Ram Pandey (Plaintiff No. 5), Sidhnath Pandey (Plaintiff No. 6), Most. Jatia (Plaintiff No. 7) represent the branch of Sheo Tahal Pandey. Naubat Pandey had three sons, namely, Rajkumar Pandey, Ram Nandan Pandey and Mahesh Pandey alias Ram Das Pande. Mahesh Pandey, initially plaintiff No. 8, is dead. Rajpati Pandey (Plaintiff No. 9) is son and Most. Phuleshwari Kuer (Plaintiff No. 10) is the daughter-in-law of Mahesh Pandey. Chandra Shekhar Pandey (defendant No. 1), Anrath Pandey (defendant No. 2), Subadar Pandey (defendant No. 3), since dead, and Raghunath Pandey (defendant No. 4) are the four sons of Rajkumar Pandey i. e. they are grandsons of Naubat Pandey and Raj Narain Pandey alias Budhan Pandey (defendant No. 5), Chandraman Pandey (defendant No. 6) and Ram Ekbal Pandey (defendant No. 7) are the sons of Chandra Shekhar Pandey.
3. There are four items of properties in Schedule 1. Two of the items relate to lands of Mouza Chak Khan Pukur (Touzi No. 1447) and Mouza Kulia Degi (Touzi No. 1448) situate within 24 Paragana in the West Bengal which will be referred to hereinafter as the Bengal properties. Item No. 3 of Sch.1 are lands of Khata No. 19 of Mouza Dulahpur-Nayazipur bearing Touzi No. 1358 and item No. 4 are lands of Mouza Rajpur Dhusri Dhari bearing Touzi No. 1347, both of which are situate in the erstwhile district of Shahabad now Bhojpur. The properties of Sch 2 consist of several items of lands given in Rehan by outsiders to the parties, the Rahan deed having been executed in the name of plaintiff No. 1 (Balmakund Pandey), defendant No. 5 (Budhan Pandey), plaintiff No. 9 (Rajpati Pandey), defendant No. 1 (Chandra Shekhar Pandey, since dead), defendant No. 2 (Anrath Pandey) and defendant No. 5, (Budhan Pandey). The properties of Sch. 3 relate to Khata No. 39 (34/1) having an area of 419 acres and are situate in Mouza Dhusri Dhari. The properties of Sch.4 are again Rehan lands of Mouza Dhusri Dhari in the erstwhile district of Shahabad which Rehan deed stands in the name of defendant No. 8.
4. The learned counsel for the parties were at one that the plaintiffs shall be out of Court in case the story of partition, as set up by defendants Ist party, is upheld. The contentions raised being of limited nature, it is not necessary to set out detailed facts of the case at this stage and it would suffice to say that the plaintiffs alleged that the differences between the parties having aggravated in the year 1961, the instant title suit having been instituted on 18.06.1963, the parties separated in mess and partitioned all their movable properties but the immovable properties contained in the four schedules, which were said to be joint family properties and in respect of which the plaintiffs claimed unity of title and possession, were left joint. While plaintiff No. 1 and plaintiffs Nos. 2 to 7 each claimed 1/3rd interest in the properties in dispute, plaintiffs Nos. 8 to 10 claimed 1/6th interest therein th
