Amar Nath Dauli Ram vs Ganesha Ram Alakh Ram

This appeal arises out of a suit for possession by partition of a house mentioned in the plaint. The suit was contested by the defendant-appellant inter-alia on the ground that the suit was bade for partial partition. The trial Court framed the following issues on the basis of the pleadings of the parties:-

Whether the suit property originally belonged to Bishna Mal, the brother of Kishna Mal?

Whether the suit property is joint of the parties and they have shares in it?

Whether the suit is property valued for the purposes of jurisdiction and court-fees?

Whether the suit is within time

Whether the suit is bad for partial partition?

Whether a similar suit had been dismissed? If so, its effect?

Whether the defendant is owner by adverse possession?

Whether the defendant has effected improvements, if so, to what amount and with what effect?

9.Relief.

The trial Court decreed the suit and an appeal from the judgment and decree of the trial Court at the instance of the defendant met the same fate and hence this second appeal.

The contention raised by the learned counsel for the appellant is that the suit is bad for partial partition. He has assailed the findings of the Courts below in this respect of two grounds-

(1) that the Courts below have erred in holding that the house inherited by the plaintiff and the defendant from their grandfather Kishna Mal is in the exclusive ownership of the plaintiff as a result of his having purchased the other half share belonging to the defendant vide sale-deed Exhibit P-1. Since it is not a registered document so it could not have been admitted in evidence to establish the transfer of title of the defendant''s father in the said house to the plaintiff, and

(2) that the decision of the Court in the earlier suit on the issue relating to the suit being bad for partial partition would operate as res judicata regarding the same issue in the present suit.

Learned counsel for the respondent has, however, urged that the suit is not bad for partial partition because the suit relates to a certain house inherited by the parties from Bishna Mal who is brother of their grandfather and no portion of the property so inherited has been left our from the present suit and so there is no question of suit being bad for partial partition. He maintains that it is not necessary that any other property held jointly by the parties is to be inclined in the present suit for partition.

To appreciate the points raised by the counsel for the appellant, it would be necessary to notice the fact that the plaintiff filed a suit for possession by partition of this very property in which he failed to include the property alleged to be joint and the same property has been left out of th present suit as well. When after the evidence was led in the said previous suit and it was at the argument stage, the present plaintiff made an application for permission to withdraw suit with the permission to file a fresh suit on the same cause of action. The trial Court granted permission to withdraw the suit with the liberty to file a fresh one on the same cause of action and that portion of the said judgment Exhibit D. 2 reads-

"It may be stated here that it was the defence objection in the written statement that the suit was for partial partition and, therefore, not competent. Now both the parties agree to this. It is well settled law that a suit for partition should embrace all the joint properties of the parties and without that the suit has to be dismissed. In these circumstances, the plaintiff can always bring a fresh suit for partition by including all properties that were joint. In these circumstances, I hold that there is a formal defect in the suit which would entail its dismissal and, therefore, acting under Order 23, Rule 1, Civil P. C., I grant the plaintiff permission to file a new suit on the same cause of action. The present suit is dismissed as withdrawn and the parties are left to bear their own costs."

I have heard the learned counsel for the parties at a considerable length. In my opinion, there is merit in the first contention raised by the learned counsel for the appellant that the property left out was joint property of the plaintiff and the defendant inasmuch as in the half share alleged to have been purchased by the plaintiff from the father of the defendant, the plaintiff did not acquire any ownership rights, because the sale-deed in question was a not a registered document and the same could not have been admitted in evidence to prove the acquisition of ownership rights of the defendant by the plaintiff in the property mentioned in the sale-deed. The fact that the sale-deed could have been admitted for collateral purpose of the possession of the plaintiff over the other half of the property cannot help the plaintiff in establishing his exclusive title to the property because in the other half of the property in question, the title would still continue to vest in the defendant.

So after having held that the property left out in question was a joint property of the plaintiff and the defendant, then the question that arises for consideration is as to whether non-inclusion of the said joint property in the suit renders the present suit bad for partial partition. The learned counsel for the respondent in this connection maintains that the suit is not bad for partial partition and in support of his submission, he has placed a reliance on Lachmi Narain v. Janki Das ILR (1901) 23 All 216 and Harihar Rajguru Mohapatra v. Nabakishore Rajaguru Mohapatra, AIR 1963 Orissa 45. I do not think that the ratio of these cases is applicable to the facts of this case, as in the former case, the property left out was one which was held by the joint Hindu family consisting of the plaintiff and the defendant along with other members of the family and the property that was the subject-matter of the partition was held jointly by the defendant and the plaintiff alone. In the latter case, no issue was raised as to whether the suit was bad for partial partition an when such a contention was raised it was met by saying that no such issue was raise and even if any joint property had been left out of the partition, then there is no absolute rule of law that the whole of the property held jointly by the parties should form the subject-matter of the suit for partition. However, there is another aspect of the matter and that is that it is not the case of the defendant that the plaintiff and the defendant are members of the joint Hindu family and the property, of which the partition is sought, as also the joint property, which is left out, from part of the property held by the said joint Hindu family. In view of this, it is clear that the plaintiff desires partition of a specific property held jointly by the parties and no portion of that property is left out and if some other property unconnected with the property in question is also held by the parties jointly, that will not be sufficient to hold that the suit for partition regarding the property in question is bad for partial partition. So I find merit in the contention advanced by the learned counsel for the plaintiff-respondent and hold that the suit is not bad for partial partition.

The second contention raised by the learned counsel for the appellant that the plaintiff is estopped from urging that the present suit is not bad for partial partition, as in the previous suit, he had admitted that the suit was bad for partial partition and, therefore, withdrew the same, has no force. Whether a particular suit is bade for partial partition or not is a question of law and there cannot be any question of estoppel against law. So the plaintiff is not estopped for asserting that the suit is not bad for partial partition.

No other point has been urged by the learned counsel for the parties.

For the reasons recorded above, the appeal fails and the same is dismissed, but there is no order as to costs.

Appeal dismissed.