A claim of partition in Hindu joint family property must be substantiated with credible evidence; conjecture does not suffice.

JUDGMENT :

PRADEEP KUMARSRIVASTAVA, J.

1. Instant Second Appeal has been preferred being aggrieved and dissatisfied with the judgment passed by District Judge, East Singhbhum, Jamshedpur dated 28.02.2004 passed in Title Appeal No. 20/1998 whereby and whereunder the judgment and decree passed by learned Trial Court (Civil Judge, Junior Division), Ghatshila in Title Suit No. 23/1994 dismissing the suit of the plaintiff has been reversed and set aside and appeal filed by the plaintiff/appellant was allowed.

2. Factual matrix giving rise to this appeal is that the respondent/plaintiff brought a suit for declaration of their right, title and interest and recovery of possession of 1 decimal land with house standing thereon pertaining to plot No. 27, Khata No. 34 as well as 21 2/3 Acres of land of Khata No. 34 of different plot situated in Amlagora Mauza, P.S. Chakulia, Dist. East Singhbhum.

3. The case of the plaintiff is that plaintiff’s father has three brothers namely Radha Mahto, Pran @ Chuna Ram Mahto and Kanu Mahto forming a Hindu Joint Family and they had possession of three houses and agricultural land jointly in the revenue records of right published in the year 1964 but after the publication of the record of right, the aforesaid three brothers orally partitioned by Metes and Bounds of their houses and agricultural land. According to said oral partition, eastern portion of the house standing on Plot No. 27 area 21 2/3 decimal was allotted to Kanu Mahto. After his death, his widow Ahilia and daughter Sajni came into possession of the same who have sold 21 2/3 decimal of land as well as eastern portion of the house standing over the said 1 decimal land to the plaintiff vide registered sale deed dated 12.03.1985 for valuable consideration and put him in peaceful possession. The plaintiff got mutated his name in respect of aforesaid purchased land. The plaintiff demolished old structure of house standing on plot No. 27 and constructed a new house in the year 1986 and allowed his father (defendant No. 1) to remain in possession as a care taker as the plaintiff used to live in other places. It is further alleged that the father of the plaintiff (defendant No. 1) without consent of the plaintiff allowed his brother (defendant No. 2) to occupy the said house. It is further alleged that in the first week of May, 1994, the plaintiff returned to his village and saw his brother (defendant No. 2) and his Bhabhi are occupying the house constructed by him. Hence, the plaintiff requested to vacate the same but they did not pay any heed. Then, the plaintiff also requested his father (defendant No. 1) to help in this matter but instead of helping the plaintiff, he took side of defendant No. 2 and defendant No. 3. Hence, this suit.

4. Defendant No. 1 and 2 appeared and filed their joint written statement emphatically denying any oral partition by Metes and Bounds in between the three brothers namely Radha Mahto, Pran @ Chuna Ram Mahto and Kanu Mahto in respect of suit properties. Therefore, no agricultural land pertaining to Khata No. 34 and part of the house standing over Plot No. 27 was ever allotted to Kanu Mahto who never came into exclusive possession of the same. As a matter of fact, the land and houses were always joint property and the parties are possessing the same as per their convenience and, if any, sale deed is purported to be executed by wife of Kanu Mahto and his daughter in respect of suit land, the same is absolutely illegal, invalid and never operated. Th