Sri Kapildeo Singh and Another vs Sri Ram Nandan Singh and Others

S.N. Jha, J.—Heard learned Counsel for the parties.

This Civil Revision by the Defendant Nos. 13 and 14 of Title Suit No. 175 of 1985 of the court of IVth Subordinate Judge, Begusarai is directed against the order dated 8.12.1998 by which the Petitioners were asked to lead evidence first.

The suit in question has been filed for partition. The court has observed that the established principle of law is that where parties are governed by Mitakshara Hindu Law, the presumption of jointness and the burden to prove partition is on the person who asserts it. In the present case, while according to the Plaintiffs, the properties are joint and there has been no partition by metes and bounds, according to Defendant Nos. 13 and 14, partition took place between the parties. In this view of the matter, the Defendants have been asked to lead evidence first to prove that there was partition.

Shri Pramod Kumar Sinha, learned Counsel for the Petitioners contended that according to the Plaintiffs themselves, the properties in question had been partitioned by virtue of private partition by metes and bounds. According to the counsel where both the parties take the plea of its partition, the normal rule of the Plaintiff''s leading evidence should be followed. He relied on the decision reported in 1999 (1) B.L.J. 265 Jagdish Choudhary v. Ganesh Choudhary and Ors.

I have gone through the plaint of Title Suit No. 175 of 1985. No doubt, in para-7 there is mention regarding the partition between the two sons of Madho Singh, namely, Jhonti Singh and Munshi Singh. From the genealogical table, it appears that both the Plaintiffs and Defendant Nos. 13 and 14 who are the contesting Defendants, belong to the branch of Jhonti Singh. The point for consideration is, whether according to the Plaintiff''s case, there was no inter se partition between sub branches represented by Plaintiffs on the one hand and Defendant Nos. 13 and 14 on the other.

In para-10 of the plaint, it has been stated that before the last cadestral survey, Jhonti Singh died in the state of jointness with his sons and grand-sons and survivors inherited the interest by rule of survivorship. In para-12 it has been stated that the joint family of Jhonti Singh were separated in mess, status and residence in 1950 and began to cultivate some lands separately without partition according to the convenience as per the family arrangement. From the above averments it is clear that the partition referred to in Para-7, was between Jhonti Singh and Munshi. Singh and not between the sons and grand-sons inter se. There being no such case pleaded by the Plaintiffs and a case of private partition having been pleaded by the Defendants, I do not find any error in the impugned order asking the Defendants-Petitioners to lead evidence first. In the circumstances, the reliance on Jagdish Choudhary v. Ganesh Choudhary and Ors. (supra) is of no help to the Petitioners.

With the above observations, this application is dismissed.