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PATNA HIGH COURT
Rudra Prakash Mishra, J.
Dilip Kumar Mishra – Appellant
versus
Deo Kumar Mishra – Respondent
First Appeal No.26 of 2023
Decided on 15.5.2026
(A) Bharatiya Sakshya Adhiniyam, 2023 – Section 2(1)(e) – General Clauses Act, 1897 – Section 3(3) – Affidavit – ‘Affidavit’ is not included in definition of term ‘evidence’ under Section 2(1)(e) of B.S.A. – Affidavit is a declaration of fact made in writing and sworn before a person having authority to administer oath – C.P.C. (Amendment Act), 2002 permits evidence in form of affidavit – However, where deponent can be available for cross-examination and opportunity is given to other party to do so, same can be relied upon – Best evidence in support of a party’s own pleadings is his sworn testimony, tested on touchstone of cross-examination – Mere pleadings or unverified assertions, howsoever strongly worded, do not amount to proof in eye of law. (Paras 16 and 23)
(B) Specific Relief Act, 1963 – Section 34 – Civil Procedure Code, 1908 – Order XVIII Rule 4 and Order XIX Rules 1 to 3 – Bharatiya Sakshya Adhiniyam, 2023 – Section 119(1)(g) – Partition suit – Appeal by unsuccessful appellant-plaintiff – Plaintiff neither appeared in witness box and nor produced himself for the cross-examination – Where a litigant withholds himself from witness-box, denies opposite party valuable right of cross-examination and withholds best available evidence from Court, in such circumstances, Court is fully justified in drawing adverse inference against such party while appreciating merits of dispute – Pleadings and affidavits, in absence of substantive proof, do not constitute evidence in eye of law – Evidentiary value of assertions made by a party stands materially diminished when such party avoids cross-examination and fails to produce independent and reliable corroboration – Plaintiff-appellant having neither entered witness-box nor subjected himself to cross-examination, and having failed to adduce cogent documentary or oral evidence in support of his case, has withheld best available evidence – Unsubstantiated averments in plaint cannot be accepted as proof of claims asserted therein – Judgement and decree passed by Sub-Judge is legal, justified and does not require any interference. (Paras 24, 25, 26, 27 and 28)
Result: Appeal dismissed.
JUDGMENT (C.A.V.)
The present First Appeal has been preferred against the Judgment dated 30.01.2023 and Decree dated 13.02.2023 passed by the learned Sub-Judge X, Hajipur, Vaishali, whereby the suit filed by the appellant-plaintiff has been dismissed.
2. The facts of the case as stated by the plaintiff in his plaint filed on 17.02.2018 is that plaintiff and defendant are own brothers and members of Joint Hindu Family. As per the case of the plaintiff, he requested the defendant for partition of joint family property. The first attempt to divide the joint family property was made by making a memorandum of partition dated 20.10.1994 which was made by the defendant without any document. In absence of any document of the joint family with the plaintiff, no action for partition could be taken by the plaintiff in the circle office. The plaintiff also states that with the wrong intention of harassing him, the defendant kept all the documents with himself and had not cooperated with the plaintiff and due to this wrong intention, filed a partition suit and desp7ite repeated requests, the defendant flatly refused due to which appropriate action could not be taken in the circle office. The plaintiff has also stated in his plaint that the defendant has committed a lot of irregularities in the Memorandum of Partition dated 20.10.1994 and has deliberately shown noncooperation and aggressive behavior against the plaintiff. The plaintiff further stated in the plaint that plaintiff has a cause of action due to the preparation of Memorandum of Partition dated 20.10.1994 for partition and the defendant’s agitated refusal to the plaintiff’s request on 25.08.2017 by not providing the necessary documents for the partition of the joint family property in the circle office.
3. The defendant appeared in the suit and filed written statement stating that the suit filed by the plaintiff is not maintainable and the plaintiff has no locus standi to bring such a suit. Further the present suit is barred by the Limitation Act, the principles of waiver, rescission, and acquiescence. The defendant further stated that the suit is filed for partition and separate possession as also for a permanent injunction, whereas only a declaration for court fees has been filed. With regard to the facts of the case, the defendant further stated in written statement that that Mahavir Prasad had two sons, Ramswaroop Mishra and Ramrup Mishra, and Ramrup Mishra had already separated from his brother Ramswarup Mishra. Ramswaroop Mishra’s had two sons namely Dev Kumar Mishra (defendant) and Dilip Kumar Mishra (plaintiff). The joint family property were divided between Ramswaroop Mishra and Ramrup Mishra long ago. The plots held in the names of Ramswaroop Mishra and Ramrup Mishra, father of Mahavir Mishra, were also divided in a proper manner, with Ramrup Mishra’s heirs receiving possession and title to half of their share. The defendant further stated that in the year 1994, the plaintiff began pressurizing for the division of the inherited and acquired property upon which a panchayati was held and a Memorandum of Partition was prepared in the year 1994 which was signed by both plaintiff and defendant after reading and understanding it. According to the Memorandum of Partition and the partition agreement, both parties took possession of their respective shares and began to live, cultivate, and maintain the land. The plaintiff retained the Memorandum of Partition with him. Later, the plaintiff also obtained the mutation of the total land in his share.
4. The learned trial court on perusal of the pleadings of the parties and after hearing them framed as many as nine issues which are as under:
(i) Whether the suit as framed is maintainable?
(ii) Whether the plaintiff has a valid cause of action?
(iii) Whether the suit is barred by the provisions of the Limitation Act, estoppel, waiver, or acquiescence?
(iv) Whether the suit land has been correctly valued and adequate court fees
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