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2011 Supreme(Pat) 1857
HIGH COURT OF PATNA
MUNGESHWAR SAHOO, J.
(5.9.2011)
First Appeal No. 252 of 2004
Against the Judgment and Decree dated 13.8.2004 passed by Subordinate Judge IIIrd, Patna in Title Partition Suit No. 328 of 2000/158 of 2002.
Baldeo Prasad Yadav & Anr. : Appellants
Vs.
Kedar Nath Yadav : Respondent
For the Appellant : M/s Sidheshwari Prasad Singh, Krishna Kishore Sinha, Ratan Kumar Sinha.
For the Respondent: M/s Dhrub Narain, Mukesh, Sandeep Kumar.
Headnote:Hindu Law–Partition–Plaintiff pleading unity of title whereas defendant's case of previous partition in the year 1971–It is clear from the documentary evidences of the plaintiff that in the year 1984, the plaintiff was dealing with the suit premises and was inducting tenants–Suit house is recorded in the name of plaintiff's wife and the defendant no.1's wife–Defendant's witnesses and the defendant himself admitting that after partition, the parties were living in the house allotted to them separately–Defendant's case is that after selling the house in 1987, the plaintiff requested him to allow him to reside in the suit house–It is not believable that when the plaintiff was residing in his house till 1987 how he was dealing with the suit property in the year 1984–There is no explanation as to how the suit properties have been entered in the name of wives, how the plaintiff was paying the electric bills and why the notice from Patna Municipal Corporation was issued–The only explanation given by the defendant is that plaintiff being his elder brother, he had full faith in him and he created all the document–Explanations of defendant cannot be relied upon as in the year 1984, the plaintiff was dealing with the property and inducting tenants without any objection by the defendants–Except the bold statement of the defendant, there is nothing on record to show that by what manner and how the plaintiff played fraud–Only on this allegation, the evidences adduced by the plaintiff cannot be wiped out–Documents clearly proving the fact that parties are in joint possession to the suit property according to their righ, title–Plaintiffs' case of unity of title is proved–Impugned judgment upheld–Appeal dismissed. (Paras 24 & 25)
1994 (1) SCC 1–Referred to.
2. The plaintiff-respondent, Kedar Nath Yadav, filed aforesaid partition suit claiming partition of his 44.33 paise share in the suit premises alleging that the suit property is a triple storied pacca building standing on plot No.36F having an area of 425.80 square yards of Rajendra Nagar Road No.10 B Block No.III type ‘F’ police station Kadamkuan, Thana No.4, District Patna. According to the plaintiff, Bechu Yadav had only one son, Kheyali Prasad Yadav who has two sons and one daughter, namely, Kedar Nath Yadav, the plaintiff, Baldeo Prasad Yadav, the defendant No.1 and Tetri Devi, defendant No.3. The defendant No.2, Ajay Kumar is the son of defendant No.1. Bechu Yadav died in jointness. After his death, his only son Kheyali Prasad Yadav became the karta. The lands and house of Kheyali Prasad Yadav was acquired by Patna Improvement Truest and the aforesaid land which is suit property was given in lease to Kheyali Prasad Yadav through lease deed dated 11.08.1961 executed by the Chairman, Patna Improvement Trust. Kheyali Prasad Yadav constructed up to double storied building out of joint family fund and he died on 02.02.1972. After his death, the plaintiff and defendant No.1 made construction of 4 rooms in second floor out of the amount received from the tenants of the ground floor and the first floor. Out of 4 rooms of the second floor, two rooms are in occupation of the plaintiff and two rooms are in occupation of the defendant No.1. The defendant No.1 was collecting rent upto Rs.15,000/- per month from the said joint house but he was not giving any account and thereby deprived the plaintiff from his due share in joint house. The plaintiffs demanded for amicable partition but he refused. Hence, the suit was filed for partition claiming 44.33 paise share.
3. The defendant No.1 and 2, i.e., father and sons appeared and filed a contesting written statement. The defendant No.3, i.e., daughter of Kheyali Prasad Yadav neither appeared nor filed written statement nor contested the suit. It may be mentioned here that during the pendency of this appeal, the said defendant No.3 who is respondent No.2 in this appeal, namely, Tetri Devi died and application being I.A. No.626 of 2011 filed for substitution of her legal representatives which is pending for disposal. Heard the parties on this application also. Since the defendant No.3-respodnent No.2 neither filed written statement nor contested the suit, it is not necessary to substitute her legal representatives as it will delay the matter, therefore, the appellants are exempted from substituting her legal representatives and her name is expunged from cause title of memo of appeal under provision 22 Rule 4 sub-Rule 4 of the Code of Civil Procedure.
4. The main defence of the defendant No.1 and 2 in short is that Kheyali Prasad Yadav had got agricultural lands also and the same land was acquired by Govt. of Bihar and compensation was paid to him from which he purchased of 2 katha land through two sale deeds dated 28.08.1957 and 29.08.1957 at Sadikpur Jogi and constructed house thereafter which is known as Kankarbagh for residential purpose. During the life time of Kheyali Prasad Yadav, oral partition took place between plaintiff and defendant No.1 in the year 1971 in the month of December. In the oral partition, plaintiff got the house situated at Kankarbagh in his share and the house of Rajendra Nagar was given in the share of defendant No.1. The joint case amount of Rs.90,000/- was also divided and the plaintiff got 60,000/- whereas defendant got Rs.30,000/- after partition in the year 1971. After partition, the plaintiff was lookin
