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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAMESH CHAND MALVIYA, J.
Lalita Devi W/o Nageshwar Pd. Singh – Appellant
Versus
Jugal Kishor Singh son of Late Raghunandan Pd. Singh – Respondent
FIRST APPEAL No.82 of 2011
Decided On : 17-03-2026
Property Law – Partition – [Section 101 of Indian Evidence Act, 1872] – Co-sharer in a joint property has inherent right to seek partition unless same has already been effected by metes and bounds – In a suit for partition, primary question for determination is whether there exists unity of title and unity of possession among parties in respect of suit property – Unless it is shown that property is held jointly and parties are co-sharers therein, no decree for partition can be granted – Law also recognizes that even where members of a family are living separately in mess or business, such separation by itself does not necessarily lead to disruption of joint status of property unless it is clearly proved that there had been a partition by metes and bounds or a complete severance of joint ownership – In a suit for partition, initial burden lies upon plaintiff to establish that suit properties are joint family properties and that there exists unity of title and possession between parties – Plaintiff must succeed on strength of his own case and not on weakness of defence – Even if defendants do not lead evidence, court is still required to examine whether plaintiffs have been able to prove their entitlement to a decree for partition on the basis of pleadings and evidence brought on record. (Paras 16, 17 and 19)
Property Law – Partition – Suit dismissed by Trial Court holding that plaintiffs had failed to establish unity of title and possession between parties with respect to suit properties – Decree cannot be granted in favour of plaintiff merely on account of absence or non-participation of defendant, Court must satisfy itself that claim made by plaintiff is legally sustainable and supported by evidence on record – Registered sale deeds prima facie indicate that parties were exercising their respective rights over lands and transferring them in favour of third parties separately – Oral evidence adduced on behalf of plaintiffs also does not appear to conclusively establish existence of joint possession over suit lands – No cogent material has been produced to establish existence of a sufficient joint family nucleus from which said properties could have been acquired – Appellate Court should permit finding of fact rendered by Trial Court to prevail unless Trial Court fails to consider evidence and materials on record to reach on said finding and same is improbable – Trial Court has rightly decided issues and findings so given are quite correct and proper which requires no interference – First Appeal dismissed. (Paras 19, 20, 24, 25, 27 to 32)
Civil Procedure Code, 1908 – Order VIII, Rule 1 – Written statement – Statements made in written statement remain as mere pleadings and cannot assume character of evidence unless proved in accordance with law – Case of parties has to be examined primarily on the basis of pleadings and evidence adduced on record – Written statement by itself does not constitute proof of facts pleaded therein unless same is supported by evidence – In absence of any evidence led on behalf of defendants, averments contained in written statement cannot be treated as proved – At the same time, such pleadings cannot automatically be treated as admitted merely because they remain unsubstantiated. (Para 20)
JUDGMENT :
Heard learned counsel for the appellants as well as learned counsel for the respondents.
2. This First Appeal has been filed against the judgment dated 26.02.2011 and decree dated 17.03.2011 passed by the learned Sub-Judge III, Katihar (hereinafter referred to as ‘Trial Court’) in Title Suit No. 88 of 2001 wherein the plaintiff/appellants suit for partition of 2/3rd share in Schedule-I and Schedule-II properties was dismissed by the learned Trial Court.
3. For the sake of convenience, the parties where required shall be referred to in terms of their status before the learned Trial Court.
4. The facts of the case, in brief, is that the plaintiff/appellants instituted the aforesaid Title Suit No. 88 of 2001 claiming partition of 2/3rd share in the properties described in Schedule-I and Schedule-II of the plaint. According to the plaintiffs, the parties (plaintiff and defendant Ist set) belong to joint Hindu Mitakshara family having a common ancestor, namely Krishna Dayal Singh, who died leaving behind four sons, namely Gaya Singh, Hardeo Singh, Kailash Singh and Rajendra Singh. The plaintiffs are the sons of Late Rajendra Singh, whereas the defendants (Ist set) are the descendants of Gaya Singh. It was pleaded that Hardeo Singh and Kailash Singh died issueless, and after the death of Hardeo Singh, his share devolved upon Rajendra Singh, as a result of which Rajendra Singh became entitled to 2/3rd share in the family properties. The further case of the plaintiff is that although disputes arose in the family and the parties separated in mess and business around the year 1976, there had been no partition by metes and bounds of the ancestral and joint family properties. It was also asserted that certain properties situated at Katihar (Schedule-II properties) were acquired in the name of Ram Sumaro Devi, wife of Raghunandan Singh, out of the income of the joint family properties, and therefore, continued to be joint family properties. The plaintiffs further alleged that some sale deeds executed in favour of different purchasers were forged, fraudulent and without consideration, and therefore, did not affect their share in the suit properties. On these pleadings, the plaintiff sought a decree for partition of their alleged 2/3rd share by metes and bounds.
5. Defendants Ist set appeared and filed their written statements contesting the suit. It was stated that there was no unity of title and possession between the parties as the family members had already separated and were dealing with their respective properties independently for a long time. The defendants specifically contended that the properties described in Schedule-II situated at Katihar were not joint family properties, rather the same had been acquired by different persons from their personal income and were also recorded in their respective names in the record of rights. It was further stated that various registered sale deeds had been executed in favour of several purchasers, who were in possession of the lands and had constructed houses thereon. The defendants therefore contended that the suit was not maintainable, was barred by limitation, suffered from non-joinder of necessary parties, and that the plaintiff had no cause of action for seeking partition.
6. In view of pleadings of both the parties, learned Trial Court framed following issues for determination:
(I) Whether the suit as framed is maintainable?
(II) Whether the plaintiffs have valid cause of action for the suit?
(III) Whether the suit is barred by law of limitation waiver, estoppel and acquiescence?
(IV) whether the suit is suffering from non-joinder of necessary parties?
(V) Whether both the parties (plaintiff and defendant Ist set) have unity of title and unity of possession over the suit land, if so, is plaintiffs are entitled for a decree of partition to the extent of share as claimed by them?
(VI) Whether the acquired property mentioned in schedule-2 of the plaint have been acquired by the joint family fu
The burden of proof in establishing joint family property and partition lies with the party alleging its existence. The court also emphasized the entitlement of daughters to share in joint Hindu fami....
A joint Hindu family property remains joint unless proven otherwise; the burden of proof lies on the party claiming separate ownership, requiring credible evidence.
The plaintiff must prove the existence of a joint family nucleus to establish claims over joint family properties; mere relation does not imply entitlement.
A partition deed long acted upon by all parties through possession and alienation is binding and cannot be reopened by descendants, especially when the original parties to the partition accepted the ....
A party seeking partition must challenge the validity of prior transactions affecting the property and cannot seek partition of property that has been sold and is in the possession of third parties w....
The presumption of joint family status in Hindu law requires clear evidence to establish prior partition; the Appellate Court allowed partition of one property acquired post-partition while dismissin....
The court reaffirmed that for a valid partition among joint family properties, proper registration and absence of fraud are crucial, emphasizing joint possession and familial rights.
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