A suit for partition requires proof of prior partition or waiver; failure to present substantiating evidence on ownership or distribution denials supports claims for joint family property.

JUDGMENT :

Anubha Rawat Choudhary, J.

This second appeal has been filed against the judgment dated 09^th October 2015 (decree dated 24^th November 2015) passed by the learned District Judge-V, East Singhbhum, Jamshedpur in Title (Partition) Appeal No. 02 of 2010 whereby the appeal has been allowed. The trial Court judgment is dated 24^th November 2009 (decree signed on 04.12.2009) passed by the learned Sub-Judge-VI, East Singhbhum, Jamshedpur in Title (Partition) Suit No. 46 of 2007 whereby the suit was dismissed. Some of the defendants are the appellants before this Court.

2. Out of 6 defendants in the suit, only defendant nos. 1 to 3 filed the present appeal. Out of them, the appellant no.1 was Smt. Saralabala Gorai, wife of Hem Chandra Gorai, and on account of her death, her name has been deleted vide order dated 16.12.2021. Her two sons are the other two appellants in this second appeal. Plaintiff and other defendants are the daughters of Smt. Saralabala Gorai and Hem Chandra Gorai.

3. This appeal was admitted for final hearing vide order dated 31.07.2018 wherein following substantial questions of law were framed:

"I. Whether in view of the fact that major portion of the suit property was sold far back during the period 1986-2000 and the plaintiff never objected to the said sale or handing over the possession to the purchasers, the suit is barred by principles of waiver, acquiescence and estoppels?

II. Whether in view of the fact that all the other co-sharers of the property have affirmed the previous partition amongst the co-sharers and also distribution of the share of the consideration amongst all the co-sharers including the plaintiff, the present suit for partition is maintainable?

III. Whether in absence of any separate source of income, admission of the plaintiff of purchasing a new house and also having an old house over the part of the suit property proves previous partition amongst the co-sharers and also sharing of the consideration amount received against the sale of part of the suit property which has been specifically affirmed by all other co-sharers in their evidence?"

4. The suit was filed for partition of the properties morefully described in Schedule-B of the plaint by metes and bounds. The prayer of the plaintiff before the learned trial court was as under: -

(a) For a decree for preliminary decree with respect to the suit properties declaring 1/7^th share of the plaint in the Schedule ‘B’ properties.

(b) For a decree for appointment of the Survey Knowing Pleader Commissioner to demarcate the plaintiff share and report.

(c) For a decree for a final decree on the basis of the report of the Pleader Commissioner.

(d) For a decree for cost of the suit.

5. Case of the plaintiff

(a) The plaintiffs and the defendants are Hindu and they are governed by Mitakshara School of Hindu Law. Genealogy has been given in Schedule-A showing the relationship of the parties. The common ancestor of the parties is Hem Chandra Gorai, who died in the year 1976. The plaintiff is the daughter of late Hem Chandra Gorai; defendant No. 1 is his wife; defendant Nos. 2 & 3 are the sons and defendant Nos. 4, 5 & 6 are daughters of late Hem Chandra Gorai. The plaintiff claimed 1/7^th share in Schedule ‘B’ property which belonged to Hem Chandra Gorai.

(b) It is the case of the plaintiff that the lands which were in possession of late Hem Chandra Gorai are now being looked after by the sister of the plaintiff, namely, Mina Gorai on behalf of the plaintiff and she is giving yearly share of the usufructs of the land to the plaintiff and there has been no part