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PATNA HIGH COURT
Mungeshwar Sahu, J.
Chadradeep Sahu & Ors. —Appellants
versus
Laldas Sahu & Ors. —Respondents
First Appeal No.697 of 1978
Decided on 5.8.2015
For the Appellants:Mr. Aakashdeep, Mr. Shyameshwar Kr. Singh, Advocates
IMPORTANT POINT
Appellate Court may permit additional evidence, if conditions laid down in O. XLI, R. 27 CPC found to exist.
Headnote:Civil Procedure Code, 1908 — Order VI, Rule 2 — Provides that pleadings shall contain only statement in concise form of material fact — On which party pleaded relies for his claim or defendant — But not evidence by which they to be proved. [Para 21]
Civil Procedure Code, 1908 — Order VI, Rule 2 — Defendant-appellant been able to prove that defendant-appellant purchased schedule property in name of defendant and plaintiff — Plaintiff and defendant are benamidar of defendant — As such not entitled to any share in Schedule property — Defendant-appellants exclusive owner of Schedule property — Which cannot be partitioned in partition suit — Accordingly findings of trial Court on this point set aside. [Para 28]
Civil Procedure Code, 1908 — Order VI, Rule 2 — Appears that plaintiff in service since 1957 and paid consideration amount to vendor for purchasing schedule property — He produced from his custody of sale deeds — Also examined DWs in support of fact that they cultivating land of defendant separately — HELD — Court below wrongly discarded evidence of DWs — Their evidence shows exclusive possession of defendant. [Para 23]
Result: Appeal allowed
Mungeshwar Sahu, J.—This First Appeal has been filed by the defendants appellants against the Judgment and Decree dated 31.07.1978 passed by the learned Subordinate Judge, Aurangabad in Title Partition Suit No.47 of 1977 decreeing the plaintiff respondent’s suit for partition.
2. The plaintiff respondent filed the aforesaid suit for partition claiming 1/3rd share in Schedule A, B. and C property and half share in Schedule ‘B’ property and in the alternative, he claimed that if Schedule ‘B’ property is found to be acquired from the joint family fund, he may be granted 1/3rd share in it also.
3. The plaintiffs claimed the aforesaid relief alleging that Kauleshwar Sahu had four sons, namely, Ram Pirit Sao, Ram Sewak Sao, Laldas Sao and Chandradeep Sao. The Schedule ‘A’ property belonged to Kauleshwar Sahu. After his death, there had been partition in the year 1960 and in that partition, Ram Sewak Sahu separated from his three brothers. A registered partition deed was prepared. Ram Sewak got his 1/4th share and the remaining 3/4th share were jointly allotted to the three brothers. The three brothers joint family had business of ropes and defendant No.1 was looking after the business as karta. Plaintiff No.1, defendant No.1 and defendant No.8 are the brothers whereas the others are descendents of these three brothers. The joint family had also a flour mill at Gordiha which was managed by plaintiff No.1. However, the same was closed two years ago. Schedule ‘B’ is the list of property stocked in business at Rafiganj. Schedule ‘C’ is the list of property purchased by plaintiff and defendant from their joint family fund. Schedule ‘D’ is the purchased property of plaintiff No.1 and defendant No.1 from their separate and exclusive fund. Schedule ‘E’ is the list of movable properties. According to the plaintiff, he has got 8 anas share in Schedule ‘D’ property whereas the defendant No.1 has got 8 anas share in the said Schedule ‘E’ property. Lastly, the plaintiff prayed for 1/3rd share in Schedule ‘D’ property alleging that if it is found to belong to all the three brothers.
4. After notice, the defendant No.8 filed contesting written statement. So far Schedule ‘D’ property is concerned, he claimed that it is his self acquired property. He was Government servant, therefore, he purchased the Schedule ‘D’ property in the name of his two brothers plaintiff No.1 and defendant No.1. In fact both are benamidar and the real owner is defendant No.8. The further case of this defendant is that the other schedule property are vague but the properties mentioned in Schedule ‘B’ and ‘C’ of the written statement which have not been included in partition are partitioned, the defendant has got no objection.
5. The defendant No.1 also filed contesting written statement. His main case is that there had already been partition between the three brothers few years after the partition of the year 1960. The defendant No.1 was allotted the house at Rafigang and defendant No.8 along with defendant No.1 whereas the flour mill was allotted to the plaintiff. So far land of Gordiha and house is concerned, it remained joint and they have got 1/3rd share each. The defendant No.8 after separation also started carrying on his business. So far Schedule ‘D’ property is concerned, it is self acquired property of defendant No.8 and the plaintiff No.1 had got no share in it. Likewise, in the property allotted in favour of defendant No.1, the defendant No.8 and plaintiff No.1 had got no concern. The defendant No.8 paid the consideration amount for purchasing Schedule ‘D’ property. Since he was in Government servant, he told the plaintiff No.1 and defendant No.1 to purchase the property in their names, although they have got no concern with the said property. However, the defendant No.1 also alleged that if partition is affected, each of the party have got 1/3rd share in the rest schedule property.
6. On the basis of the aforesaid pleadings of the parties, the following issue
