Dismissed

Smt Prema and Others v. Babadin and Others

Allahabad HC4 Oct 2023SAPL/125/1983

Case brief

AI extract

What is this about?

In a second appeal against a decree in a partition suit, the High Court held that since the defendants failed to prove that the disputed property was exclusively owned by their ancestor or that a prior partition existed, the property was declared joint and the appellate decree was affirmed.

What did the court decide?

The appeal is dismissed and the judgment and decree of the lower appellate court are affirmed.

Smt Prema and Others Vs Babadin and Others — Partition | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:63596

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Court No. - 19

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Case :- SECOND APPEAL No. - 125 of 1983

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Appellant :- Smt Prema And Others Respondent :- Babadin And Others Counsel for Appellant :- H.S.Sahai,Satya Prakash,Shashwat Srivastava,U.S. Sahai,Uma Shankar Sahai Counsel for Respondent :- N.K.Pandey,H.R.Shukla

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Hon'ble Jaspreet Singh,J .

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The instant second appeal has been preferred by the defendantappellants assailing the judgment of reversal passed by the Lower Appellate Court dated 30.10.1982 passed by 4th Additional District Judge, Gonda in Civil Appeal No. 77 of 1980, a consequence of which was the suit for partition filed by the plaintiff-respondents which was dismissed by the Trial Court by means of judgment and decree dated 13.02.1980 in R.S. No. 122 of 1976 was decreed by the Lower Appellate Court.

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The aforesaid second appeal was admitted on the following substantial questions of law which reads as under:-

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"(i) Whether there being no evidence on record to the effect that Plot No.60 was agricultural land of the common ancestor Devi Din and there being no evidence on record, that the property in dispute ever belonged to Devi Din, the lower appellate Court could reverse the findings recorded by the trial Court and could hold the parties to be co-owners of the property in dispute ?

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(ii) Whether no finding having been recorded by the lower appellate Court that the parties have been in joint possession, over the property in dispute, or the property in dispute was treated to be a joint property or that the property in dispute was acquired and constructed by the joint family funds, the lower appellate Court could hold the parties to be co-sharers?"

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Sri Shashwat Srivastava, learned counsel holding brief of Sri U.S. Sahai, learned counsel for the appellants has submitted that the Lower Appellate Court committed an error in decreeing the suit especially when the plaintiff had failed to establish that the property belonged to Devi Deen, the common ancestor.

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It is further urged that the Lower Appellate Court failed to notice that the land belonged to Sri Ram Sunder who was the predecessors-in-interest of the defendants who had purchased the property from the Balrampur Estate and that in so far as the ancestral property is concerned, a private partition had already

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taken place about 50 to 60 years ago and thus the disputed property was the exclusive of Ram Sunder, the predecessor of the defendants and accordingly the suit for partition could not have been allowed.

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It is further urged that the Trial Court had clearly noticed the aforesaid facts and finding that the plaintiff had failed to prove his case, consequently, had dismissed the suit and for insufficient reasons without considering the evidence and without meeting with the reasons recorded by the Trial Court, the Lower Appellate Court has reversed the findings which is not in consonance with law, accordingly, the judgment and decree dated 30.10.1682 deserves to be set aside.

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The Court has heard the learned counsel for the appellants. None had appeared for the respondents and accordingly the Court has proceeded to hear the learned counsel for the appellant in absence of the counsel for the respondents.

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In order to appreciate the controversy, it will be relevant to notice the facts giving rise to the present appeal, in brief:-

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The plaintiff filed a suit for partition registered as R.S. No. 122 of 1976 indicating that the Plot No.60 measuring 12 Decimal in area situate in Village Indrapur was acquired by Debi Deen, the common ancestor. Debi Deen was survived by his three sons, Kamta, Bacchu and Bisheshwar. The plaintiffs are the descendants of Bacchu whereas the defendants are the descendants of Kamta.

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Though, it was pleaded that in the ancestral properties, both the plaintiffs and the defendants are entitled to half shares which also includes trees which vested with them.

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The suit came to be contested by the defendants-appellants stating that a private partition had taken place between Kamta, Bacchu and Bisheshwar about 50 years ago. The defendant also pleaded that Ram Sunder, their predecessors had also taken the land in question from the Balrampur Estate which was exclusive to Sri Ram Sunder and as such the plaintiff had no right title or interest and the suit for partition was liable to fail.

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The Trial Court upon exchange of pleadings framed six issues, however, the issue relevant for deciding the aforesaid controversy was issue no. (i) as to whether the disputed property was ancestral of Debi Deen and if so the share of the plaintiffs therein and the other was (ii) whether the disputed property belongs to Ram Sunder exclusively.

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The Trial Court by means of judgment and decree dated 13.02.1980 dismissed the suit. The plaintiffs preferred a Regular Civil Appeal bearing No. 77 of 1980 and decreed the suit holding that the plaintiffs and the defendants had half share in the disputed property by means of judgment and decree dated 30.10.1982.

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Having considered the submissions of the learned counsel for the appellants and noticing the record, it would be seen that admittedly a suit for partition was filed. It is now well settled to be disputed by learned counsel for the appellant that in a suit for partition, each party is the plaintiff and each is the defendant.

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It was the case of the plaintiff-respondents that the property bearing Plot No. 60 measuring 12 Decimal situate in Village Indrapur, Pargana Jainagra, Tehsil and District Gonda was the ancestral property of Debi Deen.

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It was also the case of the plaintiff-respondents that no partition had taken place and since they are the descendants of Bacchu and had half share therein and as such the suit deserved to be decreed.

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This contention came to be contested by the defendants on the premise that a private partition, in so far as the ancestral property left by Debi Deen is concerned, had already taken place about 50 yeas ago. However, in so far as the disputed property in question is concerned, it had been acquired by Sri Ram Sunder alone and as such the plaintiffs had no right over the said property and the suit was liable to fail.

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This Court finds that it is not disputed that there was some ancestral property which was created by Sri Debi Deen in pursuance whereof some partition is alleged to have taken place about 50 years ago as stated by the defendants and This plea was required to be established by the defendants. In the entire evidence led by the defendants, there is no iota of cogent evidence to indicate that which property was of Debi Deen other than the disputed property in respect of which the private partition had taken place 50 years ago and who received which portion in the said private partition.

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It is also not disputed that the pedigree as mentioned is admitted to the parties. The plea taken by the defendants that they have acquired the disputed property from the Balrampur Estate also could not be established as neither any Izazatnama, a transfer deed was produced on record by the defendants to establish their plea.

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The two important plea upon which the suit came to be contested, i.e. to say (i) that a private partition had already taken place and (ii) that the land in dispute was purchased by the Balrampur Estate. This was required to be proved by the defendants and once the defendants failed to establish as to how they acquired the land from the Balrampur Estate and also failed to give any details for the private partition as claimed by them, the only necessary consequence that can be deciphered therefrom is that the disputed property which belonged to Debi Deen and the parties had half share which has been concluded by the Lower Appellate Court and the finding based on material on record does not suffer from any error on the face of record nor can it be said to be perverse.

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At least, it is admitted to the parties that Debi Deen had some ancestral properties. If the two parties are contesting a suit for partition, each has to establish its own case. The plaintiffs have clearly mentioned that the disputed property was in the name of Debi Deen. It was always open for the defendants to have established that the disputed land in question was acquired by Ram Sunder but unfortunately, as noticed above, they could not establish the same either by any oral or documentary evidence.

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Once, it is held that the exclusive acquisition of the disputed property could not be proved, the only other conclusion is that the property belonged to the ancestor Debi Deen. It also could not be established by the defendants that any private partition had taken place. In absence of any evidence to indicate that apart from the disputed property what properties belonged to Debi Deen which was partitioned 50 years ago between Kamta, Bacchu and Bisheshwar and as an outcome which property fell in the share of the predecessor of the plaintiff. Hence, the inescapable conclusion is that the property was joint. The pedigree in between the parties is not disputed and thus the Lower Appellate Court considering the aforesaid looking into the evidence has recorded a finding that the property was joint and each party had half share cannot be said to be erroneous.

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The Lower Appellate Court is the final court of fact and having noticed the same in light of the evidence available on record has returned a pure finding of fact and it could not be demonstrated by the learned counsel for the appellants as to how the findings arrived at by the Lower Appellate Court are erroneous especially when the defence could not establish their own plea.

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In view of the aforesaid, this Court is of the clear opinion that there is no error committed by the Lower Appellate Court and as such the appeal sans merit, accordingly, it is dismissed. The judgment and decree passed by the Lower Appellate Court

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dated 30.10.1982 passed by 4th Additional District Judge, Unnao in Civil Appeal No. 77 of 1980 is affirmed. In the facts and circumstances, there shall be no order as to costs. Records of the lower court be returned expeditiously.

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O rder Date :- 4.10.2023 Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Smt Prema and Others v. Babadin and Others

Case brief

What is this about?

What did the court decide?

Smt Prema and Others v. Babadin and Others

Case brief

What is this about?

What did the court decide?

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