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PATNA HIGH COURT
Mungeshwar Sahoo, J.
Krishna Nand Sahu and Ors. —Appellants
versus
Suwanti Devi and Ors. —Respondents
F.A. No.199 of 1973
Decided on 14.10.2014
Counsel for the Parties:
For the Appellants:Surendra Kumar Singh, Senior Advocate
For the Respondents: None.
IMPORTANT POINT
Separate transaction by members of joint family may not by themselves establish separation, but mutual transaction between two members of family stand on an entirely different footing and they furnish very strong evidence of separation.
Headnote:Evidence Act, 1872 — Section 32 (7) — Specific Relief Act, 1963 — Section 31 — Limitation Act, 1963 — Article 59 — Partition of Property — Parties dealing the property since 1943 separately and even there are inter se transactions — Properties sold separately and also acquired separately — One of the coparceners, i.e. father of parties admitted that there was partition in 1938 and the plaintiff no.1 separated from them — HELD — Since there had already been partition between the parties and no unity of title and possession — Plaintiffs not entitled to re-partition of property. [Para 22]
Result: Appeal allowed.
Mungeshwar Sahoo, J.—The defendants 1st set have filed this first appeal against the judgment and preliminary decree dated 28.02.1973 passed by learned 1st Additional Subordinate Judge, Sasaram in Title Suit No.167 of 1964/64 of 1965 whereby the court below decreed the plaintiffs-respondents’ suit for partition.
2. The plaintiffs-respondents filed the aforesaid suit claiming partition of plaintiffs’ 1/3rd share in the suit property described in Schedule A, B and C to the plaint.
3. The plaintiffs claimed the aforesaid relief alleging that the defendant No.1 is the step brother of plaintiff No.1 Bhirgunath Sah born through 4th wife of Ram Baran Sah. The defendant No.5 is the 5th wife of Ram Baran Sah. The plaintiff No.1 Bhirgunath Sah is the son of Ram Baran Sah. Ram Baran Sah died leaving behind two sons, namely, Bhirgunath Sah (plaintiff No.1) and Krishna Nand Sah (defendant no.1) and widow (defendant No.5). The suit property is still joint. Ram Baran Sah had acquired certain properties as Karta out of the joint family fund and the sale deeds are in the name of two sons. The plaintiff had executed Rehan deed for Rs.125/- on 09.06.1936 at the instance of his father Ram Baran Sah as the joint family was in need of money. When the mother of defendant No.1 was creating trouble stating that no property should stand in the name of the plaintiff No.1, at her instance the father asked the plaintiff to execute the sale deed in respect of the property standing in his name, although no consideration money was received by him.
4. The defendants-appellants contested the suit. Their case is that there had already been partition by metes and bounds 27-28 years ago and since then the parties are separate in all respect including the residence, mess and cultivation. They are also dealing with the properties separately. The plaintiff No.1 was not the karta after death of Ram Baran Sah. The plaintiff was separate during the lifetime of father Ram Baran Sah. After partition the properties were acquired by them which are their exclusive properties. Ram Baran Sah gifted his property to Rajendra Prasad (son of defendant No.1) by registered gift deed in the year 1957 and the donee came in possession of the property. The Rehan deed executed by plaintiff was redeemed by Ram Baran Sah. There had been many transactions by father and the plaintiff and defendant. The plaintiff No.1 mortgaged his properties allotted to him in partition to one Mewa Sah earlier which was sold by him on 11.06.1943 to Ram Baran Sah. All others allegations regarding jointness and joint possession was denied by the defendants. The defendant No.5 did not contest the suit.
5. On the basis of the aforesaid pleadings of the parties the trial court framed the following issues:
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff any cause of action for the suit?
(iii) Is the suit bad for defect of parties?
(iv) Is the suit barred by limitation, estoppel, waiver and acquiescence?
(v) Is the suit bad for partial partition?
(vi) Is there any unity of title and possession between the parties with respect to the suit land?
(vii) Is the story of partition by metes and bounds as set up by defendant No.1, correct?
(viii) Are the plaintiffs entitled to claim partition, if so, what would be their shares?
(ix) To what relief or reliefs, if any, are the plaintiffs entitled?
6. The court below came to the conclusion that there was no partition by metes and bounds as contended by the defendants as such there is unity of title and possession. Accordingly the plaintiffs’ suit was decreed.
7. The learned senior counsel Mr. Surendra Kumar Singh for the appellants submitted that the learned court below discarding the documentary evidences which are registered documents recorded wrong finding to the effect that there had been no partition. The court below also did not consider the effect of inter se transaction and also the fact that the parties were acquiring prope
