Ramjanam Dubey and Others vs Ramjag Dubey and Others

S.B. Sinha, J.—This First. Appeal arises out of a judgment and decree dated 9th December, 1980 passed by Shri Inderjeot Mishra, 4th Additional Subordinate Judge, Palamau at Daltonganj in Partition suit No. 61 of 1978, whereby and whereunder the said learned court decreed the Plaintiffs-Respondents'' suit in part.

The fact of the case lies in a very narrow compass.

The Plaintiff No. 1 and the Defendant No. 1 are admittedly the sons of late Pandit Sheonandan Dubey. The Plaintiff Nos. 2 and 3 are the sons of Plaintiff No. 1 and the Defendant Nos. 2 and 3, are the sons of Defendant No. 1.

According to the Plaintiffs, the Plaintiffs and the Defendants constituted a joint family. The Plaintiffs'' futher case is that the Plaintiff No. 1 is illiterate whereas the Defendant No. 1, who was the Karta of the joint family, was literate.

It has further been alleged that the common ancestor Sheonandan Dubey had 2 annas 6 pies Mukarari interest in village Lat-dag for which a separate takhta was carved out and the suit lands appertain to the said takhta.

It has further been alleged that. Defendant No. 1 tiled a partition suit which was registered as partition suit No. 42 of 1968, the plaint whereof has been marked as Ext. F/1, the written statement was marked as Ext. 1/A and the judgment was marked as Ext. 3/A. Ext. H/1.

It is admitted that the father of the Plaintiff No. 1 and the Defendant No. 1 died in the year 1945. It is admitted that the Plaintiffs and the Defendants had separate residences and allegedly they were possessing the agricultural lands separately for the sake of convenience.

Allegedly in the aforementioned Partition suit No. 42 of 1968, many properties were not included.

It is alleged that during the pendency of the aforementioned suit, the Defendant No. 1 transferred some of the joint family properties in favour of his grand-daughter Renuka Devi and the said properties still constitute joint family properties. It is further contended that if the Defendants insist that the said transfer was bonafide, the said land may be allorted to the share of the Defendant.

According to the Plaintiff in the judgment dated 30th September, 1977 passed by the Subordinate Judge, Daltonganj in the aforementioned partition suit No. 42 of 1968 (Ext. 3/A) it was held that despite transfers of the same lands made in favour of the members of the joint family to the parties of the suit, the same constitute joint family properties. The aforementioned suit was filed in respect of such properties which were not the subject matter of the earlier suit.

It is also alleged that some lands were alienated in favour of Bedanand Sbarma, brother-in-law of the Plaintiff No. 1 and the Defendant No. 1 and some lands were also alienated in favour of Guni Kuar wife of Defendant No. 1 and the Plaintiff Nos. 2 and 3 and the Defendant Nos. 2 and 3 but they continued to be joint family properties. The said lands have been described in Schedule-A to the plaint.

The Plaintiffs have further alleged that the Defendant No. 1 in order to deprive them created certain deeds in as much as some lands were transferred in the name of Bedanand Sharma who allegedly reconveyed the same to the Defendant Nos. 2 and 3 being plot Nos. 719 measuring 0.29 decimals, 722 measuring 1.09 decimals, 728 measuring 1 40 decimals and plot No. 745 measuring 0.22 decimals, The said lands have been mentioned in Schedule A of the plaint.

The Plaintiffs have further alleged that during hearing of the aforementioned partition suit No. 42 of 1968, it further transpired that the Defendant No. 1 transferred 1/2 of some of the plots to one Matbura Chaubey, (wrongly stated as Sita Debi) in the year 1948 which deed was alleged to have been executed by the Plaintiff No. 1 when he was a minor. The southern portion of the lands sold to the said Mathura Choubey continued to be joint family properties and have been described in Schedule-B of the plaint.

The Plaintiffs have further alleged that the father of the Plaintiff No. 1 and the Defendant No. 1 constructed two houses on plot No. 625 of village Lat-dag, one each of which is being occupied by the Plaintiff and the Defendant respectively. The said two houses have been described in Schedule-C of the plaint.

The Plaintiffs further contended that the Defendant had all along been in possession of the title deeds and other documents in relation to the joint family properties and despite requests made by the Plaintiff No. 1, he did not allow him to see the said documents or take copies thereof.

It has further been alleged that the Defendant No. 1 obtained his signature on some blank papers on the ground that the same were required for the purpose of filing returns under the provisions of Bihar Land Reforms Act but in course of earlier partition suit being partition Suit No. 42 of 1968, it transpired that the Defendant No. 1 had prepared two sets of returns one in the name of Plaintiff No. 1 and Other in his own name.

According to the Plaintiffs, therefore, they were not bound by the contents of the aforementioned returns.

The Plaintiffs have further alleged that during the pendency of the aforementioned suit, they came to learn that some raiyati settlements had been made by the Defendant No. 1 in favour of Jagdish Sao and Ors. and therein the signature of the Plaintiff No. 1 also occurs.

According to the Plaintiffs, the said settlements were also made by the joint family properties and not by the Plaintiff No. 1 alone, as such, the said land had not been included in the suit.

The Plaintiffs have further alleged that after vesting of the Zamindari, the Defendant No. 1 used to make pairvi before the Revenue Authority and he got separate assessment rolls prepared, some jointly, some in the name of Plaintiff No. 1 and some in the name of Defendant No. 1 but all such lands are joint family properties.

According to the Plaintiffs, the lands which are subject matter of the suit were not included in the earlier partition suit being partition suit No. 42 of 1968, wherein the Plaintiff claimed half share.

It has further been asserted that although the lands discussed in Schedule D of the plaint were held in auction but no delivery of possession thereof had taken place.

In the aforementioned suit, a written statement was filed by the Defendant No. 1. The said Defendant contended that the suit for partition in respect of Schedules 1, 2, 3 and 4 mentioned in the written statement is barred by limitation and advarse possession.

It has further alleged that the Plaintiff with an ulterior motive included 26.47 acres of land in Schedule D of the plaint, although, the Plaintiff No. 1 settled the same in favour of the Plaintiff Nos. 2 and 3 and some has been shown in the return filed by the Plaintiff No. 1 as the lands of Plaintiff, Nos. 2 and 3 in respect whereof rent also being paid by them.

The said Defendant has further contended that the joint family properties were partitioned immediately after the death of their father and the joint family ceased to exist thereafter.

With regard to the transfer made in favour of Renuka Devi, it has been admitted by the Defendant No. 1 that he made a gift of 79 decimals of laud out of the properties mentioned in Schedule B of the plaint but the said properties were his self acquired properties and not joint family properties.

It has further been contended that the Plaintiffs have no interest in the properties described in Schedules 1, 2 and 3 of the written statement. It has been alleged that the Defendant Nos. 2 and 3 got raiyati settlement in respect of 26.7 acres of land from the Defendant No. 1 and the same should not have been included in Schedule A of the plaint.

It has further been asserted that as the aforementioned Partition Suit No. 42 of 1968 was decreed (wrongly stated as dismissed) on contest and as the Defendants had no right of appeal any adverse finding given in the judgment of the said suit, is not binding upon the parties.

The Defendant No. 1 had further contended that in any event the Defendant Nos. 2 and 3 and Dauri Sahu, purchaser from Beda-nand Sharma as also Renuka Devi were not parties to the said suit and as such, the judgment passed therein is also not binding upon the Defendants.

It has further been asserted by the said Defendant that the properties described in Schedule 4 of the written statement is his exclusive property.

With regard to the properties described in Schedule D of the plaint also it was asserted that the same was the exclusive property of the Defendant No. 1. It has also been asserted that the auction sale was set aside except introspect of plot Nos. 583 and 584.

In short, the contention of the said Defendant is that the properties in suit are not joint family properties and as such, the same cannot be subject matter of a suit for partition.

A separate written statement was filed by the Defendant Nos. 2 and 3. The contentions raised on behalf of the said Defendant are also more or less, the same as had been contended in the written statement file by the Defendant No. 1 and as such the same need not be taken note of separately.

Upon the aforementioned pleadings of the parties, the learned trial court framed the following issues:

(i) Is the suit as framed maintainable?

(ii) Have the Plaintiffs any cause of action for the suit?

(iii) Is the suit barred by principles of res-judicata?

(iv) Is the suit barred by the law of limitation?

(v) Whether the laud were under valued and the court fee paid is insufficient?

(vi) Whether the. Plaintiffs are entitled to a decree for partition, if so to what extent and in which properties?

(vii) Whether these properties were parti-tioued between the parties?

(viii) Whether the lands of schedule numbers 1, 2 and 3 are the exclusive properties of Defendants Nos. 2, and 3 and the lands of schedule number 4 of the W.S. are the exclusive properties of Defendant No. 1 as alleged by them?

(ix) To what relief or reliefs, if any, are the Plaintiffs entitled?

The learned trial court decreed the suit in part. The suit of the Plaintiffs-Respondents was dismissed only in respect of the lands which were given in gift to Renuka Devi by the Defendant No. 1.

The learned court below while deciding the issue Nos. 6, 7 and 8 held that the lands in suit constituted joint family properties and they hid not been partitioned by metes and bounds.

It was further held that neither the Defendant Nos. 2 and 3 were in exclusive possession of the lands mentioned in Schedules 1, 2 and 3 of the written statement nor the Defendant No. 1 was in exclusive possession of the lands mentioned in Schedule 4 of the written statement.

The learned trial court further held that neither Bsdanand Sharma nor Guni Kuar are in possession of the lands in suit.

The learned court below further held that in terms of the judgment passed in partition suit No. 42 of 1968 (Ext. 3/A), the lands standing in the name of the members of the joint family must be held to be joint family properties.

The learned court below also decided issue No. 3 in favour of the Plaintiffs. With regard to issue No. 4, it was held that the said issue was not pressed. With regard to the issue No. 5, it was held that ad valorem court fee is not payable by the Plaintiffs; the suit being a simple suit for partition.

Mr. K.K. Sahay, the learned Counsel appearing on behalf of the Appellants principally made three fold submissions in support of this appeal. The learned Counsel firstly submitted that the earlier suit being a suit for partition, if the Defendant No. 1 thereof who is Respondent No. 1 herein wanted partition of the properties described in Schedules A to D of the plaint, he was free to do so inasmuch as in a suit for partition even the Defendant may pray for a decree for partition.

According to the learned Counsel, therefore, the contention of the Plaintiff to the effect that in the earlier suit the properties described in Schedules A to D of the plaint were not made the subject matter thereof, must be held to be barred under Order II, Rule 2 of the Code of Civil Procedure.

The learned Counsel, in this connection, has relied upon the decision in Krisbnaya v. Vasudeva Mallaya and Ors. reported in AIR 1918 Mad 759, in Kathersa Rowther Vs. Abdul Rahim Sahib and Others, and in Gopasundar Sabatho and Another Vs. Chunilal and Another, .

It was next contended by the learned Counsel that from a perusal of the judgment which is contained in exhibit 3/A, it would appear that in the earlier suit also it was held that Bedanand Sharma was stranger to the family and as such, the transfer made in favour of Bedanand Sharma by the Defendants-Appellants could not have been a subject matter of the present suit. According to the learned Counsel this issue is barred under the principles of res judicata.

Reliance in this connection, has been placed on Amritsagar Gupta and Others Vs. Sudesh Beharilal and Others, and in Chandra Kant Missir and Others Vs. Balakrishna Missir and Others, .

It was next contended by the learned Counsel that there had been a previous partition amongst the parties which would be evident from the stipulations made in the deed of sale dated 5.7.1943 which is contained in Ext. A/1, whereby and whereunder the Plaintiff-Respondent No. 1 sold his right, title and interest in respect of certain plots to one Mathura Choubey.

The learned Counsel contended that in the aforementioned sale deed, the Plaintiff No. 1 has clearly stated that he has half share in the properties which ipso facto goes to show that there had been a partition in the sense that a disruption in the joint family took place, although, a division of the properties by metes and bounds might not have taken place.

In this connection, it was further contended that the plea taken by the Plaintiffs to the effect that in the year 1948, the Plaintiff No. 1 was minor, he relied upon the written statement filed by him in the earlier suit as also the age given by the Plaintiff No. 1 at the time of his deposition in the earlier suit as also in this suit.

According to the learned Counsel, from the materials on record, it would appear that the Plaintiff No. 1 was born some time in January, 1930 and as such, he was major on 5.7.1948 when the aforementioned deed of sale was executed.

The learned Counsel further submitted that admittedly if the aforementioned contention is accepted it must be held that the parties were free to make transfer of such properties out of their own share. Such transfer, therefore, according to the learned Counsel, could have only been challenged by the other coparceners within a period of three years as contemplated under Articles 58 and 59 of the Limitation Act, 1963.

The learned Counsel further contended that even assuming that the period of limitation for filing such suit was 12 years even then the suit was barred by limitation.

In this connection, my attention has been drawn to paragraph 9 of the written statement filed by the Defendant No. 1, wherein it has been contended that the parties were separate and have their separate mess, residence, have been transacting business separately and have also been holding properties separately.

The learned Counsel, in this connection, relied upon a decision of the Supreme Court in M.N. Aryamurthy and Another Vs. M.D. Subbaraya Setty (Dead) through L. R. and Others, , in Mulji Narotam Vs. Hiralal Ramchandra, and in Land Acquisition Officer, Keonihar v. Ghasinatb Pradhan and Ors. reported in 1990 N.O.C. 55.

Mr. N.K. Prasad, the learned Counsel appearing on behalf of the Plaintiff Respondents, on the other hand, submitted that in the earlier suit being partition suit No. 42 of 1968, it was held by the learned court below that a suit for partial partition was maintainable and in support of this proposition, the learned court relied upon Article 339 of the Mulla''s Hindu Law. The learned Counsel, therefore, submitted that as it was held in the judgment of the earlier suit that a suit for partial partition was maintainable, it was open to the Plaintiffs to file Anr. suit for partition in respect of such properties which were not the subject matter of the earlier suit.

The learned Counsel, in this connection, has drawn my attention to paragraphs 22 and 24 of the judgment passed in said partition suit No. 42 of 1968 (Ext. 3/A). The learned Counsel, therefore, contended that in this view of the matter, there is no question of the suit being barred under the principles of res judicata or under the provisions of Order II, Rule 2 of the Code of Civil Procedure.

In this connection, reference was made to Petal Shakrabhi Armaram Vs. Bai Kanku, , in Lajwant Kaur and Another Vs. Abnashi Singh and Others, and in Sambhudutt and Others Vs. Srinarain and Others, .

The learned Counsel next contended that Defendants in their written statement did not contend that there had been a partition in the sense that a disruption in the joint family took place but the case of the Defendant was that there had been a complete partition by metes and bounds.

The learned Counsel submitted that in this view of the matter, the learned court below was justified in holding that there had been no partition amongst the coparceners and as the parties had been possessing the lands jointly along with other coparceners despite the fact that some properties stand in the name of some member? of the coparcenary or Ors. .

It was next contended that the definite case of the Plaintiffs was that some transactions were made in the name of Bedanand Sharma, Guni Kuer (Wife of Defendant No. 1) and in the names of the sons of the Plaintiff no. 1 and the sons of Defendant No. 1 only for the purpose of avoiding the vesting of lands under the Bihar Land Reforms Act.

According to the learned Counsel, the refore, such transfers were no transfers in the eye of law and thus, the same continued to be joint family properties.

With regard to the sale of lands made in favour of Sita Devi, the learned Counsel contended that although the sale deed dated 5.7.1948 (Ext. A/1) purported to bear the signature of the Plaintiff No. 1 only but in fact, the sale was made by the joint family and that is the reason as to why only the other half of the properties i.e. remaining southern portion of the said properties were made subject matter of the suit.

With regard to the question of limitation, the learned Counsel submitted that as the purported sales in favour of the members of the family were no sale in the eye of law, the question of the suit being barred by limitation does not arise.

In view of the rival connections of the parties, as noticed hereinbefore the following questions arise for consideration in this appeal:

(i) Whether the suit is barred under the provisions of Order II, Rule 2 of the Code of Civil Procedure?

(ii) Whether there has been a disruption in the joint status by and between the Plaintiffs and the Defendants immediately after the death of the father of the Plaintiff no. 1 and the Defendant No. 1?

(iii) Whether the suit was barred by limitation?

Re-Question, (i)

It is admitted that in the earlier partition suit being partition suit No. 42 of 1968, the subject matter of the present suit were not the subject matter thereof. It is also admitted that in the said suit the Plaintiff thereof who is Plaintiffs-Respondent No. 1 herein took objection with regard to the maintainability of the suit inter alia, on the ground that the subject matter of the properties of the present suit had not been made the subject matter of the partition therein. The learned Subordinate Judge, in his judgment (Ext. 3/A) : Ext. H/l) framed an issue I being Issue No. 3 which reads as follows:

Is the suit bad for partial partition?

In the aforementioned suit, the Defendant thereof who is Appellant No. 1 thereof raised a contention that the properties which had been alienated by him or by his brother bad not been made subject matter of the suit, such land consisted of the land sold by the present Plaintiff-Respondent No. 1 to Sita Devi and the land settled in favour of Jagdish Sahu. It was further brought to my notice that some other lands were also settled in favour of the other persons whose names were not disclosed.

However, according to the present Plaintiff-Respondent No. 1, the said suit was bad as the properties described in Schedules A to C of the written statement thereof were not made the subject matter of the suit. Schedule A of the written statement in the said suit consisted of the lands sold to Sita Devi (wrongly mentioned in place of Mathura Choubey) Schedule B consisted of the lands settled with different persons by the parties and. Schedule C were the lands allegedly settled with the wife, sons, nephew and brother-in-law of the Plaintiff No. 1 and the Defendant No. 1 and which were alleged to be fictitious transactions.

With regard to the sale of lands in favour of Mathura Choubey, it was contended by the Plaintiff-Respondent No. 1 that the same was done under the direction of Defendant Appellant No. 1.

The learned Subordinate Judge held that so far as the lands settled in favour of strangers are concerned, the same were not available for partition.

With regard to the sale made, in favour of Bedanand Sharma, it was observed that admittedly being the brother-in-law was stranger to the family and not a member of the joint family.

However, with regard to the alienation'' made in favour of Guni Kuar (wife of Appellant No. 1) as also the sons of the Plaintiff No. 1 and Defendant No. 1, it was held that by reason of the said alienation the properties did not cease to be joint family properties.

It, is therefore, clear that the Appellant No. 1 who was Plaintiff in the aforementioned partition suit No. 42 of 1968 himself, raised a contention that the suit will not fail although the same was a suit for partial partition. The contention aforementioned raised on behalf of the Appellant No. 1 in the said suit having been accepted by the court and thus, in my opinion, it is not open to him now to turn and contend that the suit is barred under Order II, Rule 2 of the Code of Civil Procedure.

Order II, Rule 2 of the CPC reads as follows:

Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

(2) Relinquishment of part of claim.-Where a Plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted of relinquished.

(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

It is true that normally a suit for parition should embrace within its fold the entire joint family properties. It is also true, as has been contended by Mr. Sahay that ordinarily in a suit for partition, the parties are mentioned as Plaintiffs and Defendants for the sake of convenience and a Defendant who intends to have the properties divided by partition is fit to make such a prayer.

However, under Order II, Rule 2 of the Code of Civil Procedure, although, is applicable to a suit for parition, the said principle is not exhaustive.

Jasoda Kumari Sewani and Others Vs. Sm. Satyabhama Sewani and Others, , this Court after taking into consideration various decisions of different High Courts as also the Supreme Court of India and Privy Council held as follows:

On a consideration of the above authorities, however, it is manifest that after a decree bas been passed in a suit for partition of the joint family property, a subsequent suit for parition may be brought in respect of any portion of that property which, by mistakes, or, inadvertence, or due to ignorance or to oversight, or by consent of the co-owners, was omitted in the former concerned to a partial partition, the subsequent suit for partition of the property so left out and still held in joint possession, would be maintainable. If by mistake, of the like acting innocently and fairly a portion only of their estate has been made, whether by order of the court or otherwise, there is no reason why the court should not grant a division of the remainder at the instance of one or more of the co-owners. In such a case, there could be no omission to sue within the meaning of Rule 2 of Order II of the Code. Mr. Sarkar, however, did not seriously contest the above proposition of law that, if by mistake a property is left out from the previous partition suit, a second partition suit in respect of such left out property will be maintainable; but he strongly contended that sucb mistake must be excusable, and not inexcusable amounting to negligence on the part of the Plaintiff, and that, in the present case, the Plaintiffs omission was deliberate in spite of having knowledge or existence of these omitted properties. I have not been able to appreciate this classification of mistake. If it is a mistake it obviously means a bona fide mistake; otherwise, it would cease to be a mistake, and, would amount to a deliberate and intentional omission on the part of the Plaintiff, and not due to mistake or ignorance. In the present case, however, applying the above principles, extracted from the authorities considered above, I find that the learned Sub-Judge has rightly come to the conclusion that the Plaintiff by mistake omitted to include Schedule 1 and item C of the Schedule 2 properties of the present suit in the previous suit for partition.

From the decision aforementioned, it is absolutely clear that Order II, Rule 2 of the CPC does not operate as a bar in all cases.

In Sambhudutt and Others Vs. Srinarain and Others, , it has been held:

The general rule of Hindu Law is that where a suit for partition is brought by a coparcener against the other coparceners it should embrace the whole family property. This rule is subject to certain exceptions e.g., where a portion of the property is not available for actual partition, or where it is held jointly by the family with a stranger, or where part of the joint family property consists of land situated out side the jurisdiction of the court in which the suit for partition is brought. This principle However, has not been applied with full force to the case of partition between co-tenants.

The decision cited by Mr. K.K. Sahay in Kathersa Rowther Vs. Abdul Rahim Sahib and Others, and in Gopasundar Sabatho and Another Vs. Chunilal and Another, are not on the point. In these cases, the Defendants had raised a claim of set off in terms of Order VIII, Rule 6 of the CPC and in this situation, it was held that he would be deemed to be a Plaintiff for that purpose and thus Order II, Rule 2 of the CPC would be applicable.

However, in this case, as noticed hereinbefore, as the Plaintiff No. 1 who was Defendant No. 1 in the forementioned Partition Suit No. 42 of 1968 did not pray for partition of the properties but contended that the properties described in Schedules 1, 2 and 3 of the written statement therein must be made subject matter of partition failing which the suit may not be held to be maintainable. That plea of the Plaintiff No. 1 was negatived in Partition Suit No. 42 of 1968.

In Petal Shakrabhi Armaram Vs. Bai Kanku, , a learned single Judge relying upon various decisions of other High Courts held that where a suit property was although included in the earlier suit but the plot number thereof was wrongly mentioned and an application for amendment of plaint in relation thereto was not allowed, a second suit for partition in relation to that particular plot will not be barred under Order II, Rule 2 of the Code of Civil Procedure.

Similarly, in Lajwant Kaur and Another Vs. Abnashi Singh and Others, , a division bench of the said High Court followed a decision in Duni Chand v. Jagdeva, reported in AIR 1949 EP 243 and held:

To our mind, any number of suits may go on between members of the joint Hindu family with regard to the joint Hindu Family property and between co-sharers with regard to joint property, but a suit for partition is always based on a separate eause of action and that is when one or more of the co-sharers or members of the joint Hindu Family do not want to continue joint any longer. On this principle, we are of the opinion that the learned single judge was right in holding that the principles of Order 2, Rule 2 CPC are not attracted to this case and the present suit is not barred.

Although, it cannot be said that Order II, Rule 2 of the CPC shall not operate as a bar to suit for partition under any circumstances, the exceptions to the said rule are well known and have been enumerated in various decisions and some of these have been noticed hereinbefore.

However, as seen hereinbefore, in this case the Defendant No. 1 of the earlier partition suit being partition suit No. 42 of 1968 who is Plaintiff No. 1 in the present suit did not make any prayer for partition of the properties and in that view of the matter, the question of the suit being barred under the principles of Order II, Rule 2 of the CPC does not arise.

The decisions cited by Shri Sahay, have, therefore, no application in the facts of this case.

In view of what has been found hereinbefore, it is held that the suit was not barred under Order 2 Rule 2 of the Code of Civil Procedure.

Re: Question (ii)

It has been contended on behalf of the Appellants that from the sale deed dated 5.7.1948 (Ext. A/1) executed by the Respondent No. 1 in favour of Mathura Choubey, it would be evident that there had been a disruption of joint status.

At this juncture, it may be mentioned that the plea of the Plaintiffs-Respondents, in this connection, was that the Respondent No. 1 was minor at the relevant time and the aforementioned deed of sale was executed at the instance of the Defendant-Appellant No. 1.

In the written statement filed in Partition Suit No. 42 of 1968 as also the age disclosed by the Respondent No. 1 while deposing in partition suit No. 42 of 1968 and the age disclosed by him in the present suit at the time of his deposition, it will appear that the Plaintiff-Respondent No. 1 was born in 1930.

It is true that from the deposition of this Plaintiff No. 1 and in Title suit No. 42 of 1968 (Ext. B/1) as also in his deposition in this suit, it only appears that he was born in 1930 and thus it is not clear as to whether he was major or minor on 5.7.1948 when Ext. A/1 was executed. However, it was for the Plaintiffs to prove the said fact. Mr. N.K. Prasad could not point out any evidence on record to show that on 5.7.1948, the Plaintiff No. 1 was a minor. In fact no evidence on this point has been adduced on behalf of the Plaintiffs. This point thus has to be decided against the Respondents.

Further, a registered instrument has some sanctity and when a document is executed by a person prima facie a presumption arises that the same was done in ordinary course of business and the executant being competent therefore executed the same after properly understanding the contents thereof.

It, however, cannot be said that such a presumption cannot be rebutted.

From a persual of the aforementioned deed (Ext. A/1), it appears that the Respondent No. 1 Ramjag Dubey transferred 2.31� acres of and to Mathura Choubey for a consideration of Rs. 1200. In Schedule B appended to the foot of the plaint, only the southern portion of the said lands in question have been stated to be the joint family property.

In the aforementioned deed of sale, it was clearly stated by the Respondent No. 1 that his share was half in the properties. In the said sale deed it was further stated that the executant had been in possession of the said plots by reason of separation from his brother (Appellant No. 1). Therein the share of the Defendant-Appellant No. 1 in Mauja in question as also the share of the Plaintiff-Respondent No. 1 therein namely, 1 anna 3 pies purported to have been separately and exclusively claimed by him, has clearly been stated. In other words, keeping in view the interest of the father of the Plaintiff No. 1 in the meuza, it is evident that he had half share therein.

In the said sale deed, portions, of some plots which were said to be in exclusive possession of the Plaintiff-Respondent No. 1 only were transferred.

Mr. Sahay, in these circumstances, contended that the Plaintiff No. 1 is bound by the aforementioned admissions made in the deed and as such, he cannot be permitted to question the same in the present suit after a long lapse of time.

Faced up with this situation, Mr. N.K. Prasad contended that the doctrine of estoppel by deed has no application in India and in any event, estoppel being a question of fact, it was required to be specifically pleaded by the Appellants in their written statement and In absence of any pleading, such a question cannot be permitted to be raised.

It was further contended that in any event, the doctrine of estoppel by deed is applicable only at the instance of a party to the deed and not by a third party, and in support of this proposition reliance was placed upon T.A. Mahomed Usman Vs. State of Madras and Another, .

Mr. Prasad further submitted that in any event Ext. A/1 cannot be treated as an evidence of separation of status of the joint family therein inasmuch as the same does not contain any clear and unequivocal declaration of intention of the Respondent No. 1 to separate from other members of the family.

The learned Counsel, in this connection, has strongly relied upon the decision in Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, , in Puttarangamma and Others Vs. M.S. Ranganna and Others, and in Smt. Krishnabai Ganputrao Deshmukh v. Appasaheb Tuljaramrao Nimbalkar and Ors. reported in AIR 1979 SC 1880.

In terms of Section 58 of the Evidence Act, a thing admitted need not be proved. An admission by a person in his prior statement whether in a deed or in the pleadings of a suit is admissible proporle vlgore and even such an admission is not required to be put to him when he is in the witness box.

Reference, in this connection, may be made to Bishwanath Prasad and Others Vs. Dwarka Prasad and Others, .

Such an admission, therefore, if it fulfils, the necessary ingredients of Section 21 of the Evidence Act can be accepted in evidence as against a person making the same.

In Union of India (UOI) Vs. Moksh Builders and Financiers Ltd. and Others, , the Supreme Court again reiterated that an admission by a party is substantive evidence of the fact admitted. An admission duly proved is admissible evidence irrespective of the fact as to whether the party making them appear in the witness box or not and whether that party when appearing as witness was confronted with those statements made which is contrary to the admission.

In Thiru John Vs. The Returning Officer and Others, , it has been held:

It is well settled that a party''s admission as defined in Sections 17 to 20 fulfilling the requirement of Section 21, Evidence Act, is substantive evidence proprio vlgore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to he established.

In Jaigobind Singh and Others Vs. Brij Bihari Singh and Others, , a question arose as to whether recital in a mortgage deed executed by a party with regard to the fact about existence of remaining joint in issue highly improbable or not, came up for consideration.

A division Bench of this Court in the aforementioned case held that such a statement is admissible u/s 11 of the Evidence Act as a fact relevant for the purpose of investigating into the question in controversy in the suit. It may be mentioned that the aforementioned statement was made by the Plaintiff-Respondent No. 1 when there was no controversy.

In such a situation, in my opinion, the admission made by the Plaintiff-Respondent No. 1 in the aforementioned sale deed dated 5.7.1948 (Ext. A/1) must be held to be admissible in evidence.

The question of T.A. Mahomed Usman Vs. State of Madras and Another, , relied upon by Mr. N.K. Prasad has no application in the facts of the case. In that case general principle of estoppel was sought to be invoke and as there was no pleading to the effect that the party who sought to invoke the doctrine of estoppel, altered his possession to his disadvantage; and therefore it was held that in absence of such a pleading, the rule of estoppel could not be invoked.

In the instant case, the Plaintiff himself in the plaint admitted the execution of the said document. He only raised a plea of minority and further contended that the said document was executed at the instance of the Defendant No. 1. This document was also referred to by the Plaintiff No. 1 in his earlier written statement.

An admission contained in an instrument is also an admission which may be used against the maker thereof unless he resiles therefrom or explains the circumstances under which he made the said admission which according to him was erroneous.

There is not and cannot be any particular form of admission and in that view of the matter there cannot be any doubt that an unexplained and unresiled statement made in any instrument may constitute an. admission on the part of the maker thereof. However, such an admission is merely an evidence, the tame will have to be considered alongwith other evidences on records.

In this case, a specific issue arises for consideration as to whether there had been a partition or not.

The concept of partition so far as a mitakshara coparcenery is concerned, is well known. It comprises of two parts; the first part consists of ascertaining and defining the share of the coparcenery. In other words, it consists in a numerical division of the property by which the proportion of each coparcener in the property is fixed. The second part consists of division of the properties by metes and bounds.

However, it is also well known that once the shares are defined whether by an agreement between the parties or otherwise, the partition is complete and thereafter they may continue to live together and enjoy the property as tenants in common as before.

In Mulji Narotam Vs. Hiralal Ramchandra, , a division bench of the Bombay High Court held as follows:

According to the principles laid down by their Lordships of the Privy Council themselves, the test is whether there has been an unambiguous and definite intimation of intention on the part of one member of the family to separate himself and to enjoy his share in severalty. If so, that has the effect of creating a division in interest. That expression of intention may be, for instance, by the institution of a suit or it may be some express intimation, or it may be inferred from a consistent long course of conduct.

In M.N. Aryamurthy and Another Vs. M.D. Subbaraya Setty (Dead) through L. R. and Others, , it was held as follows:

On a partition by severance of the joint status, the members of the family become tenants-in-common of the family property. If one of the members remains in possession of the entire properties of the family. There is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family.

In Somar Mahto v. Jhelo Devi reported in AIR 1990 NOC 55 (F.A. No. 72 of 1979 (R) disposed of on 7.2.1989), it was held that after partition, the question of existence of any joint nucleus does not arise.

There is, however, no doubt that severance of joint status of a mitakshara Hindu Family is only possible when there had been a clear and unequivocal intention on the part of one co-sharer to separate himself from other.

In Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, , the Supreme Court observed:

But the difficult question is whether the knowledge of such a manifested inteution on the part of the other affected members of the family is necessary condition for constituting a division in status. Hindu law texts do not directly help us much in this regard, except that the pregnant expressions used therein suggest a line of thought which was pursued by courts to evolve concepts to meet the requirements of a changing society.

The Supreme Court in that case stated the law thus:

Firstly, because, as we have pointed out earlier, the law has been well settled by the decision of the Judicial Committee that the manifested intention should be made known to the other members of the family affected thereby; secondly, because there would be anomalies on the acceptation of either of the views. Thirdly, it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby.

In Puttrangamma''s case (AIR 1968 SC 1013) the Supreme Court relied upon Raghavamma''s case (supra) and held:

The process of communication may, however, vary in the circumstances of each particular case. It is not necessary that there should be a formal despatch to or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. The proof of such a despatch or receipt of the communication is not essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case.

In that case the Supreme Court in the facts thereof held that such an unequivocal declaration was made.

In Smt. Krishnabai''s case (AIR 1979 SC 1880) the Supreme Court followed the decision in Puttarangamma and Others Vs. M.S. Ranganna and Others, and held that such an intention can also be made/inferred from the recitals of a document.

It was further held that once such declaration is made, the same cannot be nullified.

In this case, however, in my opinion, such a question does not arise for consideration at all. It is not a case where the Defendant-Appellant No. 1 disputes the factum of partition. It is Defendant-Respondent No. l''s case that a partition had in fact been effected. On the other hand, it is the Plaintiff No. 1''s case who stated that there had been no partition.

In the circumstances, the question as to whether prior to execution of the aforementioned deed of sale dated 5.7.1948 (Ext. A/1), there had been an unequivocal declaration on the part of the Plaintiff No. 1 to separate himself from the joint family and whether such an intention was communicated to the other co-parceners or not is thus, does not arise at all.

It is a well settled principle of law that a partition which had allegedly been taken place a long time back, a clear and direct evidence of partition may not be available. In such a situation, the conduct of the parties including separate mess, separate residence, separate cultivation together with separate transaction may be taken into consideration for coming to an inference as to whether there had been a partition or not.

In Ram Gopal and Others Vs. Smt. Maya Devi and Others, , the Allahabad High Court came to the conclusion that in view of the recitals made in a deed of sale which was executed on 21st July, 1947 wherein the vendor stated his share to be l/8th, an inference of partition must be drawn.

In that case also it was held that such a deed of sale although, not binding upon the non-executant, is admissible in evidence.

In AIR 1930 93 (Privy Council) , it was held that separation in food, residence for a long time between two brothers of a Hindu family, independent transactions of property such as mortgages and leases and appropriation of the proceeds thereof to personal uses, description of one of the brothers of Hindu family, independent transactions of properties such as mortgages and leases and appropriation of the proceeds thereof to personal uses etc. may show that there had been a partition between the brothers during their life time.

In the instant case, it is admitted that the parties had separate mess, had been residing separately, have been making their trans-factions separately and have been paying rentseparately. According to the Plaintiffs, they had also been cultivating their lands separately but there had been no partition by metes and bounds as a matter of fact, even the parties had admitted that there had been separate transactions of the properties by each branch separately. It is also evident from the records that after coming into force of the Bihar Land Reforms Act, even the parties filed separate returns and have also been paying rent separately after assessment therefore was made. It is true that the Respondents alleged that the same was done at the instance of the Appellant No. 1, but no evidence worth the name has been brought on record in this connection, A mere allegation cannot be a substitute for proof.

It has also been brought on records that a large tract of land had been purchased in the name of the wife of Appellant No. 1.

It, however, stands admitted in this evidence that some properties are still jointly possessed by them. In such a situation, there is no escape from conclusion that although, there was a partition amongst the coparceners long back but they have been possessing some of the properties jointly and tenants in common and not as joint tenants. This is also supported from the fact that even in the returns, some properties were shown to be in joint possession.

In Bhuneshwar Singh and Ors. v. Shanti Devi and Ors. reported in 1990 (2) PLJR 190, this Court held:

It is now well settled that although a presumption of jointness has to be drawn but when a partition by disruption is alleged coupled with the fact that parties are in separate possession of the properties, such a plea has to be judged upon taking into consideration the cumulative effect of various factors namely separate residence, separate mess, separate cultivating possession and separate transaction etc.

The learned trial court proceeded on the basis that as the parties have been possessing some lands jointly, there was no partition by metes and bounds and the family continued to be a joint family. The learned court below appears to have failed to consider the evidence of separate payment of rent by each branch in respect of the lands held by them separately.

The approach of the learned court below, in my opinion, was not correct.

In this case, an issue as to whether there was a partition between the Plaintiff No. 1 and the Defendant No. 1 or not was specifically raised and thus, in order to prove their case, it was open to the Defendants to contend that the partition in the legal sense had already taken place, although, there was no division of all the properties by metes and bounds.

In view of the fact that the Defendants raised a plea of previous partition, the aforementioned sale deed (Ext. A/1) being a relevant fact, is admissible evidence.

The Plaintiff, except making some vague allegations in the plaint did not bring any material on records to prove that the aforementioned deed of sale was executed by the Plaintiff No. 1 at the behest of the Defendant No. 1. No witness has been examined by the Plaintiff in this regard. Even the Plaintiff No. 1 himself did not say specifically in his deposition to substantiate this plea. A mere pleading or a mere submission is no substitute for proof.

Nothing has been brought on record to show that the recitals made in Ext. A/1 were not made voluntary and were incorporated in the aforementioned deed at the instance of the Defendant-Appellant no. 1.

Taking, thus, all facts and circumstances into consideration, there is no escape into conclusion that the Plaintiffs have failed to prove that the day on which the deed of sale was executed, he was a minor or the same? was executed by him at the instance of the De-fendant No. 1, without understanding the content and purport thereof. The Plaintiff No. 2 and consequently the other Plaintiffs are, the refore, bound by the said transaction.

Mr. Prasad, however, contended that according to the Defendant No. 1 himself, the partition took place in the year 1949 and thus the said case, being inconsistent with the plea that the partition took place in the year 1948, must be negatived.

In a suit for partition of this nature it is for the Plaintiff to prove unity of title or unity of possession. If on the basis of the materials brought on records, it is found that the Plaintiff himself admitted about severance of joint status; the same becomes a clear proof of partition. No further evidence is required to be considered more so when an admission was made by the Plaintiff at a point of time and when there was no dispute between him and the Appellant No. 1. At the cost of repetition, it may be stated that the Plaintiff No. 1 even did not make any attempt to explain the same and the grounds taken by him for assailing the document namely, that he was a minor at the relevant time or the same was executed at the instance of the Defendant, have not been proved by him.

The Plaintiffs also categorically stated that there had been a separation amongst the joint family in the year 1963. In this background, the transactions made by the parties are to be considered.

So for as the transfer made by the parties in favour of their brother-in-law Bedanand Sharma is concerned, evidently the same cannot form the subject matter of partition in this suit.

In the judgment passed in title suit no. 42 of 1968 (Ext. 3/A: H/1), it has clearly been held (vide paragraph 17) that Bedanand Sharma is a stranger to the family. This finding is binding upon the Plaintiffs and shall operate as res judicata as against them.

Admittedly Bedanand Sharma, transferred the properties to Damri Sahu on 20.3.1958, who is not a party to the suit. The properties sold to aforementioned Damri Sahu are not the subject matter of the present suit also. Further Bedanand Sharma transferred some of the properties to the Defendant Nos. 2 and 3 by a deed of sale dated 15.4.1972 (Ext. A/2 and A-2/2). Admittedly, the parties separated in the year 1963 and thus any transaction which was made thereafter, cannot be said to be an acquisition for the joint family, so as to render the same liable for partition.

In any event, neither Bedanand Sharma is a party to the suit nor is Damri Sahu. The Plaintiffs have also not made any prayer for cancellation and/or setting aside the aforemention deed of sale nor have paid ad-valorem court fee in relation thereto.

In such a situation, it must be held that the said transactions cannot be the subject matter of the suit and it has to be held that the properties sold to aforementioned Bedanand Sharma by the parties cannot form subject patter of partition.

Admittedly, on 25.2.1954, 17.68� acres of Gairmajarua land were settled in favour of Guni Kuar by Plaintiff No. 1 and the Defendant No. 1. The said deed of settlement has been marked as Ext. B/2.

According to Mr. N.K. Prasad, the settlement being in close proximity of the date of vesting in the State of Bihar which took place in the year 1955, the same must be held to be a bogus document.

It was also submitted that with regard to the said properties, there had been a finding in the earlier partition suit namely Title suit No. 42 of 1968 to the effect that the same continued to be a joint family properties. According to the learned Counsel, although, the same would not operate as res judicata the same has same evidenciary value.

In Title suit No. 42 of 1968, a plea was taken on behalf of the Defendant-Appellant No. 1 that a suit for partition will not be bad. In that case, no issue was specifically raised as to whether the properties described in Schedules A, B and C of the written statement filed the rein continued to be ajoint family properties or not. The suit filed by the Defendant No. 1 of the present suit was decreed. In such a situation, he did not have any occasion to prefer an appeal from the judgment and decree passed therein. In that view of the matter, in my opinion it is open to the Plaintiff to contend that the properties settled in favour of the wife of the Defendant-Appellant No. 1 is to be a joint family properties.

It is now well known that transactions effected by reason of a registered document have some sanctity. A document if questioned, on the ground that a transaction made thereafter was a sham, coercive or fictitious one and thereby no title passed on to the transferee, the said facts are required to be pleaded and proved.

The lands settled in favour of Guni Kuar were Gairmajarua lands. The witnesses examined on behalf of the Plaintiffs merely stated that they continued to be in joint possession without making any statement, as to how they used to possess the same. Nothing has been brought on record to show that the lands purported to have been settled in favour of Guni Kuar were, culturable lands and the produce thereof used to be divided between the two branches in equal shares.

It is true that as the said settlement was made in close proximity of vesting of the intermediaries in the State of Bihar under Bihar Land Reforms Act, but the same, by itself, in my opinion, will not be a conclusive proof that the settlement was made in order to defeat the provisions of the Bihar Land Reforms Act or a sham transaction.

The settlement in favour of Guni Kuar was made by the Plaintiff No. 1 and the Defendant No. 1 jointly. It is admitted that the State also recognised the said settlement.

P.W. 5 Ramjag Dubey, in paragraph 10 of the cross examination admitted that 19.50 acres of land were purchased in the name of the Respondent No. 1, the said properties are being held and possessed by the Respondent separately. This is also a pointer to show that the parties acquired the lands separately.

Similar, would be the effect of the purported grants made by the Plaintiff No. 1 and the Defendant No. 1 jointly in favour of their sons namely, Plaintiff Nos. 2 and 3 on the one band and the Defendant Nos. 2 and 3 on the other.

From the evidences on records, it is evident that those properties have also been under separate possession of the parties. The question that the Plaintiff Nos. 2 and 3 had been residing with the Plaintiff No. 1 or the Defendant Nos. 2 and 3 had been residing with the Defendant No. 1 are matters of little or no consequence.

It further appears that by reason of such settlements more or less the same quantity of the lands were settled jointly by the Plaintiff No. 1 and the Defendant No. 1 to their own kith and kin would also be binding upon them. Such transactions could be challenged, by the Plaintiffs only on the ground that they are sham transactions. However, except a suggestion to the effect that those settlements were made near about the time when the properties were to vest in the State of Bihar under the provisions of the Bihar Land Reforms Act, nothing has been brought to show that the transactions in question were in fact not given, into effect and merely remained paper transactions brought into existence for the purpose of defeating the provisions of the Bihar Land Reforms Act.

It is pertinent to mention that in relation to the settlements made in favour of the Plaintiff Nos. 2 and 3 and Defendant Nos. 2 and 3 no specific averments have been made in the plaint to the effect that they are sham transactions.

The Plaintiffs merely contended that the Defendant No. 1 obtained signature of Plaintiff No. 1 on several papers and converted them into returns filed under the provisions of the Bihar Land Reforms Act.

With regard to the other transactions, the Plaintiff merely stated as follows:

That the Plaintiff no 1 in course of the earlier partition suit learnt that some raiyati settlements were made by the Defendant No. 1 in favour of Jagdish Sao and Ors. out of the joint family property and the Plaintiff No. 1 as directed by Defendant No. 1 had put his signature on such papers. All such settlements in favour of strangers were made by the joint family and not by the Plaintiff No. 1 alone. Hence such lands are excluded from this suit.

In relation to the settlements made in the name of Guni Kuar, a vague allegation has been made that they are joint family properties. In fact, the Plaintiff proceeded on the basis that in the earlier partition suit namely, Partition suit No. 42 of 1968 it has been held by the learned Additional Subordinate Judge that they are joint family properties as would be evident from the settlements made in paragraph 10 of the plaint.

It is therefore, clear that in the plaint of the present suit, the Plaintiffs did not make any allegation whatsoever challenging any particular transaction or any particular ground.

In law, the Plaintiff was bound to raise specific pleadings challenging the said transactions as is required under Order VI, Rule 4 of the Code of Civil Procedure. Evidently, the plaint does not satisfy the requirements of Order VI, Rule 4 of the Code of Civil Procedure.

The learned trial court also purported to have proceeded on the basis that the issue as to whether the properties in suit are joint family properties or not, have been adjudicated upon in the said partition suit No. 42 of 1968.

The learned court below has neither discussed nor analysed the pleadings and nor did it take into consideration as to whether the Plaintiffs have adduced evidences in relation to some matters although, not pleaded in the plaint. Except some vague statements made by P.W. 1, P.W. 2 and P.W. 5 that the parties are in joint possession of the lands, no other proof whatsoever with regard to the joint possession of the parties in relation to the lands which were the subject matter of settlement in favour of Bedanand Sharma and Guni Kuar or the Plaintiff Nos. 2 and 3 as well as the Defendant Nos. 2 and 3 have been brought on record.

It, therefore, must be held that the learned court below did not decide issue Nos. 6, 7 and 8 in accordance with law.

So far as the judgment passed in Partition suit No. 42 of 1968 is concerned, it appears from the written statement filed by the Plaintiff in that suit that the contentions raised by them therein were as follows:

That unless the Plaintiff includes in partition all the lands falsely shown as settled with his wife, son and nephew, no suit for partial partition can proceed. The Plaintiff should also include other lands which as alleged in para 4 of the plaint were given to the Plaintiff by Defendant.

From the judgment of that suit which has been marked as Ext. 3/A, one of the issues raised was issue No. 3 which was in the following term:

Is the suit bad for partial partition?

The learned Additional Subordinate Judge, in his judgment dated 30th September, 1977 passed in partition suit No. 42 of 1968, made the observation which has been stated by the Plaintiff in the plaint while deciding the aforementioned issue No. 3.

From a perusal of the said judgment, itself, it is evident that therein the Plaintiff contended that only these lands which were still joint between the parties had been included in the suit and other lands which were alienated by him or by the Defendant (Plaintiff No. 1 in the present suit) have not been included in the plaint.

It is true that the learned Additional Subordinate Judge in that suit purported to have decided that lands which were settled in the name of the family members continued to be joint family properties and while deciding the said issue the said learned court also referred to evidence of the Defendant (Plaintiff No. 1 in the present suit), for the purpose of showing that settlements were in respect of Gairmajarua land the same were made at the admission of vesting zamindari so that the lands were save from vesting,

Evidently, this issue did not arise for consideration by the said learned court in the aforementioned partition suit No. 42 of 1968.

The aforementioned issue arose for consideration in this case but as noticed hereinbefore, no such allegation has been made by the Plaintiff in their plaint.

It is further evident that the learned Additional Subordinate Judge in this judgment passed in the aforementioned partition suit No. 42 of 1968 after making the aforementioned observations proceeded to adjudicate as to whether even the non-inclusion of such lands which were settled in favour of the family members of the parties the said partition will fail or not and held that the suit will not be bound for partial partition.

Mr. N.K. Prasad, conceded that the purported finding of the learned Additional Subordinate Judge in his judgment passed in Partition suit No. 42 of 1968 shall not operate as res judicata. However, it was contended by the learned Counsel that even in such an event the Defendant are estopped from contending otherwise.

In support of the contention, the learned Counsel has relied upon a decision in Ramsaran Pandey Vs. Iswar Pandey and Another, and in AIR 1931 123 (Oudh) .

In Ramsaran Pandey Vs. Iswar Pandey and Another, , this Court has held that where a party adopts a certain plea in a suit and obtains a decision on a point in his favour on the strength thereof, he cannot in Anr. suit in which the same point is raised be heard to adopt a plea inconsistent and contrary to the one relied on in the former suit.

In AIR 1931 123 (Oudh) , it was held that when a party raised a question or (sic) registration of the Board of Revenue and on that basis the Plaintiff filed a suit for partition, it would not be open to that party to contend that Board of Revenue had jurisdiction to decide the said matter.

Evidently, the aforementioned decisions have no application in the facts of the case. It is evident that the Defendants-Appellants did not contend in the partition suit No. 42 of 1968 that the properties settled in the name of Guni Kuar or in the name of the sons of the Plaintiff No. 1 and the Defendant No. 1 continued to be a joint family properties. In fact, they took a contrary plea.

Further, in view of my findings aforementioned, that there had been severance of joint family long before and the parties had been possessing the properties as tenants in common and not joint status, the question of the properties even after settlement continuing to be joint family properties does not arise. Such settlements, if any, should have been challenged, as indicated hereinbefore, only on the ground that they were sham transaction and/or in fact were had not been and were not meant to be acted upon but such a plea has not been raised on behalf of the Plaintiff Respondents.

In the result, this appeal is allowed and the judgment and decree passed by the learned court below is set aside. However, in the facts and circumstances of this case, the parties shall bear their own costs throughout.