1989 Supreme(Pat) 260

PATNA HIGH COURT
S.B.Sinha, J.
Ganesh Sahu
Versus
Dwarika Sao
Appeal From Appellate Decree No. 97 of 1977 ;
Decided On : AUGUST 3, 1989

In a suit for partition, the onus to prove the factum of previous partition is upon the defendants, and the presumption of jointness in a Hindu family can be rebutted by direct evidence or by course of conduct of the parties, especially in a case when the alleged partition took place long time back.

Headnote:

PARTITION - PREVIOUS PARTITION - ONUS OF PROOF - ADMISSIBILITY OF EVIDENCE - INTERPRETATION OF PLEADINGS - JOINT FAMILY - PRESUMPTION OF JOINTNESS - SEVERANCE OF JOINT STATUS - INFERENCE OF PARTITION - SEPARATE POSSESSION - INDEPENDENT TRANSACTIONS - MUTATION OF NAMES - IMPROVEMENTS - DISRUPTION OF JOINT FAMILY - ADMISSION OF PARTIES - FINDINGS OF FACT - APPEAL.

Fact of the Case:

Plaintiffs filed a suit for partition of 24 shares of land, claiming four shares for themselves and three shares for the second plaintiff. The defendants raised a plea of previous partition. The trial court dismissed the suit, holding that the partition had taken place in the year 1349 F.S.

Finding of the Court:

The court held that the plaintiffs were not prejudiced by the trial court's observation that only the defendants Nos. 4 to 6 were contesting defendants and other defendants were supporting the case of the plaintiffs, as the trial court had taken into consideration the evidence adduced by the different sets of defendants separately while deciding the issues of unity of title and possession and previous partition. The court also held that the evidence adduced by the defendants to prove the factum of partition by holding a Panchayati and in the year 1345 F.S. was admissible in evidence, as the defendants had pleaded the material facts by stating in details the effect of previous partition and in respect whereof specific issues were framed and the parties had been given opportunities to lead evidence in respect of the said issues. The court further held that the onus to prove the factum of previous partition was upon the defendants, and that there had been a previous partition as alleged by the defendants, as the plaintiffs had admitted that there had been a disruption in the joint family and the parties had been possessing the properties separately, and the evidence on record showed that the parties had been in separate possession of the properties in question, had made independent transactions in respect of lands in their respective possession for a long time, and had got their names mutated separately.

Issues: (A) Whether the plaintiffs have been prejudiced in any manner by reason of the observations of the learned trial Court that the only contesting defendants are defendants Nos. 4 to 6 and other defendants have been Supporting the case of the plaintiffs? (B) Whether the findings of the learned Court below to the effect that partition took place in the year 1349 F.S. was based on inadmissible evidence? (C) Whether the onus to prove the factum of previous partition was upon the defendants and whether there had been a previous partition as alleged by the defendants?

Ratio Decidendi: 1. The court held that the plaintiffs were not prejudiced by the trial court's observation that only the defendants Nos. 4 to 6 were contesting defendants and other defendants were supporting the case of the plaintiffs, as the trial court had taken into consideration the evidence adduced by the different sets of defendants separately while deciding the issues of unity of title and possession and previous partition. 2. The court held that the evidence adduced by the defendants to prove the factum of partition by holding a Panchayati and in the year 1345 F.S. was admissible in evidence, as the defendants had pleaded the material facts by stating in details the effect of previous partition and in respect whereof specific issues were framed and the parties had been given opportunities to lead evidence in respect of the said issues. 3. The court held that the onus to prove the factum of previous partition was upon the defendants, and that there had been a previous partition as alleged by the defendants, as the plaintiffs had admitted that there had been a disruption in the joint family and the parties had been possessing the properties separately, and the evidence on record showed that the parties had been in separate possession of the properties in question, had made independent transactions in respect of lands in their respective possession for a long time, and had got their names mutated separately.

Final Decision: The court dismissed the appeal, holding that there was no merit in the appeal and that the parties shall bear their own costs of the appeal.