Admissibility of documents as evidence and burden of proof in partition cases.

JUDGMENT :

This Second Appeal has been filed under Section 100 of Code of Civil Procedure against the judgment & decree dated 10/02/2020 passed by Additional District Judge, Sausar, Distt. Chhindwara in Civil Appeal No.48-A/2018, whereby learned ADJ dismissed the appellants' appeal and affirmed the judgment and decree dated 25/01/2018 passed by Civil Judge Class-I, Sausar, Distt. Chhindwara in Civil Suit No.2-A/2012, whereby learned Civil Judge Class-I partly allowed the suit and declared that respondent no.1 (Plaintiff of the case) is having 1/5th share in agricultural land survey no.340 area 1.618 hectare and 1/3rd share in the land survey no.342/3 area 2.022 hectare located at Halka Savanga, Tehsil Sausar (further referred to as Suit land) and is also entitled to get them partitioned and get vacant possession of his respective share in the suit lands post partition.

2. It is admitted between the parties that the land survey no.340 area 1.618 hectares was earlier owned by Ramchandra. He died in the year 1980. Ramchandra had three sons namely Madhukar (respondent no.1), Premlal (appellant no.1) and Vaman and two daughters Saraswati (respondent no.2) and Vimal (respondent no.3). Vaman has already died. Pusha Bai (appellant no.2) is the widow of Vaman. Harsha, Madhuri, Swati (appellant no.3,4 & 6 respectively) are the daughters and Sachin (appellant no.5) is the son of Vaman. The land survey no.342/3 area 2.022 hectares was jointly purchased by Madhukar, Premlal and Vaman.

3. Apart from admitted fact brief facts of the case are that respondent no.1 Madhukar (plaintiff of the case) filed a Civil Suit No.2-A/2012 for partition and getting possession of his share in the suit land averring that earlier suit land survey no.340 area 1.618 hectare belonged to his father Ramchandra and after the death of Ramchandra, the heirs of Ramchandra i.e. Madhukar, Premlal, Vaman, Vimal and Saraswati became the joint owners of the land. Plaintiff Madhukar has 1/5th share in the land. Likewise, the land survey no.342/3 area 2.022 hectares was jointly purchased by the Madhukar, Premlal and Vaman. So, in that land also he has 1/3rd share. When partition was demanded, the same was refused by the appellants. So the suit land be partitioned and his share be separated and vacant possession of the land of his share be also given to him from the appellants/respondent no.1 to 6, besides a mesne profit of Rs.7000/- per year to him from them.

4. The appellants no.1,2,7 and 8 (defendants no.1, 2, 7 and 8 of the case) in their written statements denied the claim of plaintiff Madhukar and averred that after the death of Ramchandra, on 07/05/1982, Madhukar Signature Not Verified SAN (plaintiff of the case) and defendant Premlal and Vaman Rao divided their ancestral land survey no. 340 and the land survey no. 342, which was jointly purchased by them into three parts, Saraswati Bai and Vimal, daughter of Ramchandra were not given any share in the land. After partition, the three brothers continued to cultivate after occupying their share of the land, but their names were not recorded separately on the suit land in the revenue records. The area of land that came in their share was very less, they had trouble cultivating it, so appellant Premlal purchased land survey no.118/4 area 0.809 hectare from Gaya Bai in the name of Madhukar by registered sale deed dated 26/12/1996 and Premlal and Vaman gave that land to plaintiff Madhukar. In lieu of that Madhukar relinquished his share in the suit land. After that, Premlal and Vaman divided the disputed land between them and after the death of Vaman, his heirs are in possession of the land which came into their share. Because Madhukar had relinquished his share in suit land, so he has no share in it.

5. Appellants No. 3 to 5 and 6/ Defendant No.3 to 5 and 6 did not file any written statement and remained Ex Parte.

6. Learned trial Court partly allowed the plaintiff's claim and held that the appellant's/respondent's have failed to