Fakli Devi and Others vs Budhram Mahto and Others

Nagendra Rai, J.—The plaintiffs-appellants have filed this appeal under clause 10 of the Letters Patent of the Patna High Court against the

judgment and decree dated 31-1-1989, passed by a learned single Judge of this Court dismissing the appeal against the Judgment and decree

dated 23-12-1975, passed by the 5th Subordinate Judge, Ranchi, in Partition Suit No. 382/200 of 1968/1974 dismissing the suit for partition.

Admittedly, both the parties are governed by Mitakshara School of Hindu Law and their ancestor was one Raiya Mahto, who had two sons,

namely, Chaitan and Dalu.

Original Plaintiffs Nos. 1 to 3 and defendants Nos. 1 to 3 belong to the braneh of Chaitan and defendants Nos. 4 to 15 belong to the branch of

Dalu.

According to the plaintiffs, families of both the branches of Chaitan and Dalu were joint and they possessed ancestral properties described at the

foot of the plaint. Out of thenucleus, the joint family acquired properties in the name of one or the other members of the family. In course of time,

the family became large and as such they separated and are living separately and for convenience, they also cultivated certain lands separately, but

there was no partition by metes and bounds according to the shares of each member of the branches. Chaitan died in 1942 leaving behind his three

sons, namely, Asarani, Pocha and Jungle. Asaram died on 1954 leaving behind a widow, who also died. Asaram''s son Brijnath also died leaving

behind his widow Sakhia (D.W. 2) and his daughter Jaimani (D.W. 3). Another son of Asaram, Budhram is D.W. 1. The share of plaintiffs Nos. 1

and 2 is 5 annas 5 paise in the entire property, 2 annas 8 paise belonged to defendants Nos. 1 to 3 and the remaining half belonged to defendants

Nos. 4 to 15 representing the branch of Dalu. There was difficulty in joint cultivation and as such a prayer was made by the plaintiffs for partition.

When the said request was not acceded to by the defendants, the suit for partition was filed.

Two sets of written statements have been filed in this case - one by defendants Nos. 1 to 3 and the other by defendants Nos. 4 to 15. The case

of defendants Nos. 4 to 15 is that there is no unity of title and possession and there was a complete partition between the parties. The partition

took place on two occasions one before the revisional survey and the other after the revisional survey, The properties detailed in Schedule B/l,

which were partitioned prior to revisional survey were allotted to the branch of Chaitan and the properties detailed in Schedule B/2 were allotted

to the Branch of Dalu, In a partition, which took place after revisional survey, the properties described in Schedule C/l were allotted to the branch

of Chaitan and the properties described in Schedule C/2 were allotted to the branch of Dalu and belonged to defendants Nos. 4, 5, 7, 10, 13, 14

and 15. Their further case is that the properties, which were allotted in the partition to the two branches were exclusively recorded in their names in

the survey records. It was also stated that the lands of khata No. 60 of village Baruhatu have been allotted to the branch of Chaitan who had sold

the same to the stranger, which shows that there is previous partition between the parties. Alternatively, it was stated on behalf of the defendants

that Dalu and his male descendants have been all along in sole and exclusive possession of the lands detailed in Schedules 1, B/2 and C/2 of the

written statement in open assertion of hostile and exclusive title to these to the full knowledge of Chaitan and his legal representatives and as such

they have perfected their title by adverse possession. The lands of khata No. 195 of village Jintu and Khata Nos. 22 and 23 of village Barwadih

district in Schedule ''A'' of the written statement are their exclusive properties. It is also stated that even there was a partition between the sons of

Chaitan also.

Defendants Nos. 1 to 3 filed a written statement and they supported the case of defendants Nos. 4 to 15. They further asserted that there was

already a partition between the two branches of Chaitan and Dalu and, thereafter, there was a partition between the sons of Chaitan also.

The trial Court held that there was previous partition by metes and bounds between Chaitan and Dalu and as such there was no unity of title and

possession between the parties. With regard to certain lands, which were shown in possession of under-raiyats, the trial Court having found that

the under-raiyats are not parties gave liberty to the plaintiffs to file a properly constituted suit for partition of the said lands.

The plaintiffs preferred an appeal bearing First Appeal No. 10 of 1976(R) before this Court and a learned single Judge by order dated 13-8-

1987 remitted the case to the Court below upon framing two additional issues and directed for rehearing of the suit after framing the

aforementioned two issues and, thereafter, to send its findings to this Court. The two additional issues were as follows :-

(i) Have the defendants acquired title by adverse possession after ousting the plaintiffs from the suit land?

(ii) Whether the plaintiffs are entitled to maintain the suit for partition in respect of the lands which are admittedly in occupation of the under-

raiyats?

Before the trial Court, the parties prayed that the matter might be decided on the evidence already adduced and available on the record and,

thereafter, the trial Court, after hearing the parties, sent its finding to this Court as contained in its judgment dated 19-4-1988. With regard to the

additional issues, the trial Court held that the suit for partition was maintainable even with regard to the land in possession of the under-raiyats and

that the under-raiyats were not necessary parties. With regard to other issue, the trial Court held that the defendants-respondents have acquired

title by adverse possession with regard to the lands mentioned in Schedules A, B/2 and C/2 of the written statement. Thereafter, the matter was

finally heard and by the impugned judgment under appeal, the learned single Judge has dismissed the appeal.

Learned counsel for the appellants submitted that the finding regarding previous partition is not supported by the evidence on records. He further

submitted that there is no evidence on the record to show that Dalu had separate Income, out of which he had purchased self acquired properties,

He lastly submitted that the learned single Judge having found that the suit for partition is maintainable with regard to the lands which were in

possession of the under-raiyats and which lands were admittedly not partitioned, has erred in dismissing the suit for partition.

Learned counsel for the respondents, on the other hand, supported the Judgment of the trial Court and the High Court and submitted that no

case for interference in this appeal is made out.

Both the parties adduced oral and documentary evidence in support of their cases. Before proceeding to discuss the points urged on behalf of

the appellants I may state at the outset that the parties are admittedly governed by the Mltakshara School of Hindu Law. There is a presumption

regarding jointness of the members of the Hindu family. The law presumes that the members of the joint Hindu family are joint and this presumption

becomes stronger In the case of father and his sons. It is for the party, who pleads partition or separation, to prove the same satisfactorily by

adducing direct evidence or by course of conduct. In a case where the partition has taken long back and it is not possible to get direct evidence on

the point, then separate possession of the land by different branches for a long time may give rise to presumption that there has been already a

partition.

In the case of Bhagwan Dayal Vs. Mst. Reoti Devi, , the Apex Court has held that in the case of old transactions when no contemporaneous

documents are maintained and when most of the active participants in the transaction have passed away, though the burden still remains on the

person, who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case there the

evidence is not obliterated by passage of time.

As the defendants'' assertion is that the partition had taken long back, it is not possible to get a direct evidence on the point of actual partition.

However, some of the defendants'' witnesses, who are old ones, have stated about the partition having taken place between the branches of

Chaitan and Dalu. Both the Courts have accepted their evidence on the point of partition. Learned counsel for the appellants has not pointed out

any infirmity in appreciation of the oral evidence. So far as the documentary evidence is concerned, both the Courts have relied upon the entries in

the khatians as well as the orders in the Tanaja proceedings and the rent receipts to come to the conclusion that the defendants'' assertion of

partition is correct. It is to be stated that the entries in the survey records or settlement records with regard conclusive proof of the partition. The

rights or interests are not dealt with In settlement of records. It has been held by the Privy Council in the case of Nageshwar Baksh Singh v. Mt.

Ganesha, reported in AIR 1920 PC 46 that the inference of partition from such records may be weak or may be strong according to the

circumstances. Records of this character take their place as part of the evidence in the case. They do no more. Their importance may vary with

circumstances, and it is not any part of the Law of India that they are by themselves conclusive evidence of the facts which they purport to record.

Thus, the entry in the survey records or in mutation records are not conclusive proof of partition, but they are piece of evidence and they have

to be considered in the light of other evidence available on the record. The defendants have claimed that the lands of khataNo. 195 of village Jintu

as well as lands of khata Nos. 22 and 23 of village Barwadih as described in Schedule A of the written statement were acquired by them in 1993

and 1918, respectively. It appears from the records that these lands were acquired by Dalu. The said fact is borne outby the entries made in the

khattans (Exts. H/6/7 and H/8). Tanaja proceedings were initiated with regard to the lands of these khatas and there was contest between Dalu

and Chaitan and the orders were passed in favour of Dalu, which is borne out from Exts. 1/2, 1/3 and 1/4 with regard to the aforesaid lands. The

branch of Chaitan never contested the wrong entries in the Tanaja records by filing any regular suit.

Regarding partition of Joint family lands, the defendants'' case is that the lands mentioned in Schedules B/1 and C/1 of the written statement

were allotted to the branch of Chaitan and the lands mentioned in Schedules B/2 and C/2 were allotted to Dalu. Both the Courts have considered

the documents filed by the defendants, namely, the khatlans as well as the orders in the Tanaja cases during the survey proceedings and found that

the entries made in the survey khatlans fully support the assertion of the defendants with regard to the allotment of lands to two branches in terms

of the earlier partition. It is not necessary to deal with each and every document.

Learned counsel for the appellants did not challenge the factual matters relied upon by the Courts below with regard to those entries.

However, he submitted that the decree (Ext. 3) passed in pursuance of a compromise in Title Suit No. 74 of 1943 belies the story of partition. In

this connection, it appears that the said title suit was filed by Dalu Mahto for declaration of title etc. with regard to the land of plots No. 409 and

410 under Khata No. 22 in village Berwadih, in which the defendants were sons of Chaitan. The said suit was disposed of in terms of

compromise. Both the parties were allotted half share and it was also agreed that the defendants, who are the plaintiffs here, will pay rent to Dalu

Mahto (plaintiff). From a perusal of the plaint and written statement of the aforesaid title suit, which have been filed as Exts. F and F/l), it appears

that the plaintiffs, who were defendants in the said suit in the written statement nowhere claimed that the said lands were belonging to joint family.

On the other hand, they claimed their exclusive possession over the said lands as reclaimed lands. Thus, the aforesaid documents do not prove the

plaintiffs'' assertion that the family was Joint. If that was a joint family land, then there was no question of payment of rent by the plaintiffs to Dalu as

incorporated in the said compromise decree (Ext. 3). This apart, according to the defendants, the land of khata No, 60 of Baruhatu was allotted to

Chaitan in the first partition. Chaitan has admittedly sold the aforesaid lands to a stranger, Ext. C shows that a mortgage deed was also executed

by the branch of Chaitan with regard to certain lands. The receipts (Exts. E series) and the Choukidari receipts (Exts. A series) also support the

assertion of partition. According to the plaintiffs, they have been living separately and they were also cultivating the land In possession out of

convenience. Defendants Nos. 1 to 3, who represent the branch of Chaitan, have asserted that there was a partition from before and there was no

reason for them to make such a statement as the same was against their interest.

Taking into consideration the oral and documentary evidence, which have been relied on behalf of the parties, in my view, both the Courts

have rightly come to the conclusion that there was a partition between the parties from before and the lands of khata Nos. 195, 22 and 23 are the

self-acquired properties of the branch of Dalu, Thus, there is no reason to take a view different than what has been taken by the trial Court and as

upheld by the learned single Judge of this Court with regard to partition between the two branches.

Admittedly, there are certain lands, which are in possession of under-raiyats. The details of the said lands are on the record. The trial Court

had come to the conclusion that the suit with regard to the lands in possession of the under-raiyats was maintainable even without adding them as

necessary party. The learned single Judge did not upset the aforesaid finding, rather in paragraph No. 35 of the Judgment, he has agreed with it.

However, he has not passed any decree for partition of the aforesaid lands in possession of the under-raiyats. Admittedly, the said lands have not

been partitioned between the two branches as the defendants never claimed that the said lands were partitioned.

In that view of the matter, the lands, which are in possession of the under-raiyats, are available for partition. The under-raiyats are not

necessary parties so far as the partition of the raiyati interests between the raiyats are concerned and as such the learned single Judge erred in not

decreeing the suit of the plaintiffs for partition of the properties, which were in possession of the under-raiyats, the details of which have been given

by the plaintiffs-appellants.

In the result, this appeal is allowed In part and the suit of the plaintiffs with regard to the partition of the lands, which are in possession of the

under-raiyats is decreed. In the facts and circumstances, there shall be no order as to costs.

Let a preliminary decree be prepared accordingly.