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2015 Supreme(Pat) 144
IN THE HIGH COURT OF JUDICATURE AT PATNA
Aditya Kumar Trivedi, J.
Narendra Pandit & Ors. - Appellants
Versus
Hiralal Pandit & Ors. - Respondents
First Appeal No. 207 of 1990
Decided on: 20-03-2015
For the Appellants:Mr. Parmeshwar Pd., Mr. Suraj Narain Yadav, Mr. Pramod Kumar Sinha, Mr. Rakesh Kumar Sinha, Mr. Arvind Kumar Sharma-1, Advocates.
For the Respondents:Mr. Prashant Vedsen, Advocate, Mr. Suraj Narain Yadav, Advocate
The main legal point established in the judgment is the presumption of jointness under Hindu Law in the absence of proof of partition and adverse possession.
Headnote:
Partition Suit - Hindu Law - Mitakshara School - Survey Plot Nos. 1754, 1755, 2163, 2165, 2167, 2238, and 3159 - The court discussed the joint family governed by Mitakshara School, the demand for partition, and the denial of partition by the defendants. The court considered the nature of the land, the inter se relationship amongst the parties, and the plea of adverse possession. The judgment and decree passed by the lower court were set aside, and the appeal was allowed.
Fact of the Case:
The plaintiffs filed a partition suit against the defendants, seeking a declaration of 1/4th share in the ancestral properties possessed by the joint family. The defendants denied the jointness of the family and claimed exclusive possession over certain properties.
Finding of the Court:
The court found that the defendants failed to prove their claim of partition and adverse possession. The judgment and decree passed by the lower court were set aside, and the appeal was allowed.
Issues: The court considered the maintainability of the suit, the right of the plaintiffs to sue, the unity of title and possession over the properties, and the entitlement of the plaintiffs to partition decreed.
Ratio Decidendi: The court held that in the absence of proof of partition and adverse possession, the presumption of jointness under Hindu Law prevailed, and the judgment and decree of the lower court were set aside.
Final Decision: The judgment and decree passed by the lower court were set aside, and the appeal was allowed.
Based on the provided legal document, the court primarily held that in the absence of proof of partition and adverse possession, the presumption of jointness under Hindu Law remains valid. The evidence and documentary records, including unregistered agreements, were found insufficient to establish a valid family settlement or partition. The court emphasized that the burden of proof lies on the party claiming separation to substantiate their case, and mere mutation or unregistered documents do not conclusively prove partition or exclusive possession. Furthermore, the court recognized the principle that ancestral property is presumed to be jointly held unless clear, registered documentation or evidence of partition and separate possession is presented. Consequently, the court set aside the lower court's decision that favored partition and instead reaffirmed the joint family status, thereby upholding the presumption of jointness and the entitlement to a share in the ancestral property. The appeal was allowed, and the suit was dismissed to reflect the continued jointness of the family property.
Appellants/plaintiffs (henceforth referred to as plaintiff) have filed instant appeal against the judgment dated 31.03.1990, decree dated 16.04.1990 passed by Ravindra Nath Verma, Sub-Judge, 1st Munger in Title (Partition Suit) No. 61/1982 partly decreeing the suit identifying 1/3rd share concerning Survey Plot no. 2163, 2164, 2165, 2167, 2238 and dismissed the suit relating to Survey Plot No. 1754, 1755 and 3159 along with other plot of Schedule B of the plaint as well as failed to acknowledge ¼ share.
2. Inter se relationship amongst the parties is found detailed as per pedigree furnished hereinafter (Schedule-A):-
Genealogical Table :-
XXX XXXX XXXX
3. Shiboo Pandit was common ancestor who died leaving behind four sons, namely, Chamroo Pandit, Khakho Pandit, Phagu Pandit, Ganesh Pandit @ Baishakhi Pandit as well as properties detailed under Schedule-B of the plaint, wherefrom it is evident that sons of Phagu Pandit happens to be the plaintiff while remaining branches are the respondents/defendants (hereinafter referred to as defendant). It has been disclosed that plaintiffs and defendants constitute joint family governed by Mitakshara School. Even after death of common ancestor, Shiboo Pandit, jointness amongst his heirs continued and in likewise manner joint possession over the properties detailed under Schedule-B. In due course of time, plaintiffs have demanded partition which defendants declined and lastly, showing the cause of action on 19.08.1982, the date on which defendants flatly refused to partition the property, after paying requisite court-fee filed the instant partition suit asking for declaration of 1/4th share in the suit property, followed with appointment of pleader-commissioner to carve out separate patti whereupon plaintiffs be put in possession, cost of the suit, any other relief or reliefs the plaintiff is found entitled for.
4. Under Schedule-B, the plaintiffs have detailed the ancestral properties possessed by the joint family as Survey Plot Nos. 1754, 1755, 2163, 2165, 2167, 2238 and 3159.
5. Each branch of the defendants filed separate WS. The branch of Chamroo Pandit, namely, defendants no. 1 and 2 filed WS wherein apart from raising ornamental objection, admitted para-1, 2 of the plaint. However, denied the other averments of the plaint over asking for partition by the plaintiffs in an evasive manner.
6. The branches of Ganesh Pandit @ Baisakhi Pandit having shown under defendant Nos. 11 to 14 out of whom defendants No. 12 to 14 have been shown minor under the guardianship of defendant no.11 have filed independent WS wherein the major objection has been raised over inclusion of Survey Plot No. 2166 under Schedule-B property (subsequently extracted) regarding which these defendants have claimed to have purchased by his father out of his own earnings in the year 1947 and further, it was never given under common fund rather was being used and is being used as separate self acquired property without having any concern with other family members. It has also been submitted that that mutation has been effected in terms of sale-deed. His father had got a map passed from the municipality.
7. It has also been submitted that father of plaintiff had also purchased from his own savings a land lying by the side of Survey Plot No. 1755. It has also been submitted that Survey Plot No. 2168 do not belong to joint family rather it belongs to one Bhuj Narain Pandit and others without having any concern with their family and on account thereof, the aforesaid land should also be excluded from Schedule-B property (subsequently deleted).
8. Then it has been submitted that remaining plots which now stand under Schedule-B of the property happens to be joint family property being ancestral one left by common ancestor Shiboo Pandit who died leaving behind four sons and on account thereof, each one has got 1/4th share and in likewise manner, it should be partitioned. In para-13, he had detailed the plots possessed by joint
