Dismissed

Shiv Balak v. Dalpat

Chhattisgarh HC17 Sept 2020SA/82/2008

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of title, the High Court affirmed the first appellate court's finding that no legal partition had occurred. The court held that separate residence and cultivation by convenience among large joint families do not constitute severance of status or define shares necessary for partition, dismissing the appeal.

What did the court decide?

The second appeal was dismissed, leaving parties to bear their own costs, affirming the first appellate court's judgment.

Shiv Balak Vs Dalpat — Partition | Chhattisgarh HC (2020)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.82 of 2008
Judgment Reserved on :2.9.2020
Judgment Delivered on: 17.9.2020

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1. Shiv Balak Son of Late Goverdhan Singh, aged about 40 years,

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2. Tirath Singh Son of Late Goverdhan Singh, aged about 35 years,

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3. Birso Widow of Late Goverdhan Singh, aged about 70 years,

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4. Penganga Son of Indel, aged about 70 years,

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5. Bihari (died) through LR's

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5.a Bijo Bai W/o Bihari, aged about 55 years,

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5b. Ageshwar, S/o Shri Bihari, aged about 36 years,

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5c. Nilambar S/o Bihari, aged about 29 years,

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5d. Daulat Singh S/o Bihari, aged about 27 years,

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5e. Deepak Kumar S/o Bihari, aged about 20 years, All are R/o Village Bakalo, P.S. Premnagar, Tahsil and District Surajpur (CG)

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6. Pidhin (died) through LR's

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6a. Naiharo (died) through LR's

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6(a)-1 Manbahal S/o Late Sukhdev Singh, aged
about 39 years,

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6(a)-2 Shivnarayan S/o Late Sukhdev Singh, aged
about 34 years,

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Both are R/o Village Bakalo (Nanjhariya), Post
Bakalo, P.S. & Tahsil Premnagar, District
Surajpur (CG)

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7. Naiharo (died and deleted)

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8. Dilbhajan Son of Jhelsai, aged about 60 years,

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9. Mansai Son of Jhelsai, aged about 45 years,

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10. Nansai Son of Jhelsai, aged about 40 years,

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11. Kishorhin (died and deleted)

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12. Umeshwar (died and deleted)

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13. Bhakchand Son of Bhanwar Sai, aged about 40 years,

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14. Bhakuli (died and deleted)

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15. Budhiyaro D/o Jhelsai, aged about 50 years,

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16. Sonmet D/o Jhelsai, aged about 45 years,

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17. Kondi D/o Jhelsai, aged about 42 years,

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18.Sohan Sai (died) through LR's

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18(a) Baigaram S/o Late Sohan Sai, aged about 40
years, R/o Village Bakalo, P.s. Premnagar Tahsil &
District Surajpur (CG)

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18(b) Lakhan Singh (died) through LR's

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18(b)-1 Karmen Bai, Wd/o Late Lakhan Singh, aged
about 45 years,

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18(b)-2 Jagdish, S/o Late Lakhan Singh, aged
about 29 years,
18(b)-3 Raghuvir, S/o Late Lakhan Singh, aged
about 27 years,
18(b)-4 Sukhvir S/o Late Lakhan Singh, aged
about 25 years,
18(b)-5 Dalvir S/o Late Lakhan Singh, aged about
22 years,
18(b)-6 Shivratri, D/o Late Lakhan Singh, aged
about 19 years,

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All are R/o Village Pampanagar, Post Patrapali,
Police Station and Tahsil Ramanujnagar, District
Surajpur (CG)

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19. Devmuniya (died) through LR's

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19(A) Shesh Singh, S/o Late Nawal Sai, Aged about
45 years
19(B) Ambikeshwar Singh S/o Late Nawal Sai, aged
about 43 years,
19(C) Balram Singh S/o Late Nawal Sai, aged about
40 years,
19(D) Uttam Singh, S/o Late Nawal Sai, aged about
38 years,

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19(E) Sharda D/o Late Nawal Sai, aged about 32
years,

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All are R/o Village Bakalo, P.S. Premnagar, Tahsil
& District Surajpur (CG)

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20.Fulbasiya D/o Indel Sai, aged about 55 years;
The appellant No.1 to 20 are Caste Gond, Occupation
Agriculture, Resident of Village Bakalo, Police
Station Premnagar, Tahsil Surajpur, District Sur-
guja (CG)

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---- Appellants/Plaintiffs

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Versus

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1. Dalpat Son of Ramsai aged about 50 years

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2. Suhano (died) through LR's

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2(A) Chhatradhari, S/o Premha, Aged about 70 years, 2(B) Rai Singh S/o Chhatradhari, aged about 30 years,

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2(C) Bhan Singh, S/o Chhatradhari, aged about 35 years,

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All are R/o Village Premnagar, Police Station &
Tahsil Premnagar, District Surajpur (CG)

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3. Aayam D/o Ramsai, aged about 53 years,

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4. Sushila Widow of Visambher, aged about 45 years;

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5. Amarsai Son of Visambher, aged about 25 years The respondent No.1 and 3 to 5 are Caste Gond, Occupation Agriculture, Resident of Village Bakalo, Police Station Premnagar, Tahsil Surajpur, District Surguja (CG)

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---- Defendants

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6. State of Chhattisgarh, through the Collector, Surguja, Ambikapur (CG)

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---- Respondents

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For Appellants/Plaintiffs:

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Mr.Ashok Kumar Shukla, Advocate
For Respondents No.1, 2(A) to 2(C), 3 to 5/Defendants:
Mr.D.N.Prajapati, Advocate
For Respondent No.6: Mr.Ravi Bhagat, Dy.G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal

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C.A.V. Judgment

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1. Proceedings of this second appeal have been conducted through video conferencing.

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2. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellants/plaintiffs is as under:-

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“Whether the first appellate Court was
justified in setting aside the finding of
previous partition between the parties by

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recording a finding, which is perverse to
the record and thereby unjustified in
dismissing the suit of the plaintiff ?”

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[For the sake of convenience, the parties would
be referred hereinafter as per their status shown
in the suit before the trial Court].

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3. The suit property was originally held by Jhariya. The plaintiff and the defendants are closed relatives of Jhariya. Defendants No.1 and 2 filed an application for partition of the suit land under Section 178 of the Madhya Pradesh Land Revenue Code,

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1959 (hereinafter called as 'the Code') before the
Naib-Tahsilar,Surajpur.TheNaib-Tahsildar,
Surajpur by its order dated 14.11.88 directed the
parties to get their title adjudicated by the
jurisdictional Civil Court. Consequently, the
plaintiffs filed the instant suit for declaration of
title and permanent injunction stating inter-alia
that plaintiffs No.1 to 7 are title-holders of the
suit land shown in Schedule 'A, B, C, D and E',
whereas the defendants are title-holders of the suit

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land shown in Schedule 'F' as partition has already
been taken place among the parties herein 40 years
prior to the date of institution of suit and they
are in possession of their respective shares, but

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their holdings are joint as they are living
separately by constructing house and cultivating

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separately as per prior partition held among the
parties. Therefore, decree for declaration of title
and permanent injunction be granted in their favour.

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4. Resisting the suit, the defendants filed their written statement and denied the averments made in the plaint stating inter-alia that for sake of convenience the parties have constructed separate houses and cultivating lands separately, but it has not been partitioned and shares have not been defined, therefore, no such partition has taken place among them and the Naib-Tahsildar, Surajpur has unnecessarily directed the parties to get their dispute adjudicated before the jurisdictional Civil Court, as such, the suit deserves to be dismissed.

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5. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment and decree dated 27.1.2006 decreed the suit
holding that plaintiffs No.1 to 7 are title-holders
of the suit land shown in Schedule 'A, B, C, D and
E' of the plaint and the defendants are title-
holders of the suit land shown in Schedule 'F' of
the plaint, which the defendants challenged by way
of first appeal. The first appellate Court allowed
the appeal and set aside the judgment and decree of
the trial Court. Questioning the judgment and decree

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of the first appellate Court, this second appeal
under Section 100 of the CPC has been filed by the
appellants/plaintiffs, in which substantial question
of law has been framed by this Court, which has been
set-out in opening paragraph of this judgment for
sake of completeness.

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6. Mr.Ashok Kumar Shukla, learned counsel for the appellants/plaintiffs, would submit that the first appellate Court is absolutely unjustified in reopening the partition already concluded between the parties 40 years prior to the date of filing of the suit in view of judgment of the Supreme Court in the matter of Ratnam Chettiar and others v. S.M.Kuppuswami Chettiar and others 1 and finding recorded by the first appellate Court that prior partition is not proved is contrary to the facts and law available on record and as such, the judgment and decree of the first appellate Court is liable to be set aside and the appeal be allowed.

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7. On the other hand, Mr.D.N.Prajapati, learned counsel appearing for respondents No.1, 2(A) to 2(C) and 3 to 5/plaintiffs, would support the impugned judgment and decree and submit that the plaintiffs have only stated that the parties are residing separately and cultivating separately, but even there is no

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1 (1976) 1 SCC 214

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pleading made and evidence led defining the shares
of the parties, as such, it is the case of no
partition and prior partition has not been even
properly pleaded and established, therefore, the
second appeal deserves to be dismissed.

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8. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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9. In order to answer the substantial question of law so formulated, it would be appropriate to notice the meaning of “partition”.

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10. The principles of Hindu law by Mulla, 20^th edition page 321, defines the partition as under:-

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“According to the true notion of an undivided
Mitakshara family, no individual member of that
family, whilst it remains undivided, can
predicate of the joint property, or that a
particular member, has a certain definite
share, one-third or one-fourth. Partition,
according to that law, consists in a numerical
division of the property; in other words, it
consists in defining the shares of the
coparceners in the joint property; an actual
division of the property by metes and bounds is
not necessary. Once the shares are defined,
whether by an agreement between the parties or
otherwise, the partition is complete. After the
shares are so defined, the parties may divide
the property by metes and bounds, or they may
continue to live together and enjoy the
property in common as before. However, whether
they do the one or the other, it affects only
the mode of enjoyment, but not the tenure of
the property. The property ceases to be joint
and immediately the shares are defined, and

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henceforth, the parties hold the property as
tenants-in-common.”

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11. The Supreme Court in the matter of Kalyani

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(dead) by L.Rs., v. Narayanan and others2 defined the
partition as under:-

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“....a disruption of joint family status by a
definite and unequivocal indication to separate
implies separation in interest and in right
although not immediately followed by a de facto
actual division of the subject-matter. This may
at any time be claimed by virtue of the
separate right. From the time of such
disruption, each member holds his aliquot share
as tenant-in-common irrespective of whether
there is actual division of the properties by
mets and bounds. Such would be the position,
unless there is proof or reunion as understood
in law. It is established law that actual
physical division or partition by metes and
bounds is not an essential ingredient for the
purpose of effecting severance of status. That
is really a formality in the process of
partition. When there is a severance of the
joint family from a particular date, but the
properties are not petitioned, the members of
the family become tenants in common and would
be liable to account for the incomings received
by them till the time that a final partition of
such members. Such coparcener are tenants in
the common but cannot be characterized as
trustees.”

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12. “Partition” is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares

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2 AIR 1980 SC 1173

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vest in them in severalty. (See Shub Karan Bubna
alias Shub Karan Prasad Bubna v. Sita Saran Bubna
and others3.) The Supreme Court further held qua
partition in the aforesaid case-Shub Karan Bubna
(supra) as under:-

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“6. A partition of a property can be only
among those having a share or interest in
it. A person who does not have a share in
such property cannot obviously be a party to
a partition. “Separation of share” is a
species of “partition”. When all co-owners
get separated, it is a partition. Separation
of share(s) refers to a division where only
one or only a few among several co-
owners/coparceners get separated, and others
continue to be joint or continue to hold the
remaining property jointly without division
by metes and bounds. For example, where four
brothers owning a property divide it among
themselves by metes and bounds, it is a
partition. But if only one brother wants to
get his share separated and other three
brothers continue to remain joint, there is
only a separation of the share of one
brother.

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7. In a suit for partition or separation of
a share, the prayer is not only for
declaration of plaintiff's share in the suit
properties, but also division of his share
by metes and bounds. This involves three
issues:

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(i) whether the person seeking division
has a share or interest in the suit
property/properties;

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(ii) whether he is entitled to the relief
of division and separate possession; and

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(iii) how and in what manner, the
property/properties should be divided by
metes and bounds?

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3 (2009) 9 SCC 689

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In a suit is for partition or separation of
a share, the court at the first stage
decides whether the plaintiff has a share in
the suit property and whether he is entitled
to division and separate possession. The
decision on these two issues is exercise of
a judicial function and results in first
stage decision termed as “decree” under
Order 20 Rule 18(1) and termed as
“preliminary decree” under Order 20 Rule
18(2) of the Code. The consequential
division by metes and bounds, considered to
be a ministerial or administrative act
requiringthephysicalinspection,
measurements, calculations and considering
variouspermutations/
combinations/alternatives of division is
referred to the Collector under Rule 18(1)
and is the subject-matter of the final
decree under Rule 18(2).”

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13. Similarly, learned Author Mulla at page 326 has

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also stated about the evidence of partitionand
burden of proofas under:-

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“2. The next case is of the kind dealt with by
the Privy Council in Appovier v. Rama Subba
Aiyan4, where the coparceners, with a view to
partition executed a writing, whereby they
agreed to hold the joint property in defined
shares as separate owners. Such writing
operates in law as a partition, though the
property is not physically divided. This is a
case where the agreement declares on the face
of it, the intention of the parties to hold the
joint property as separate owners, and no
evidence is admissible of the subsequent acts
of the parties to control or alter the effects
of the document.

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3. The third case is of the kind dealt with by
the Privy Council in Doorga Pershad v. Kundun5,
where the agreement was in writing, but the
document did not declare on the face of it, the
intention of the parties to hold the joint
property as separate owners. In such a case,

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4 (1866) 11 MIA 75

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5 (1873) 13 Beng LR 235

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when the question arises as to whether the
document operates as a partition, the intention
of the parties is to be inferred from: (1) the
document; and from (2) their subsequent acts.

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Where an instrument of partition, after
giving one member his share, provided that the
rest of the property was to be divided in a
particular manner and that the remaining
members should live like an ordinary undivided
family subject to survivorship, it was held by
the Privy Council that there was no partition
between the other members.

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4. The last case is of the kind dealt with by
the Privy Council in Ganesh Dutt v. Jewacb6, a
case where there was no writing at all. In such
a case, when the question arises as to whether
there has been a partition or not, the
intention of the parties as to separation can
only be inferred from their acts. The question
is one of fact to be decided with due regard to
the cumulative effect of all the facts and
circumstances, and primarily the burden of
showing that there has been a partition is on
the person setting it up.

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14. Reverting to the facts of the case in the light

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of aforesaid meaning of partition, it is quite vivid
that the plaintiffs stated that the suit property
was originally held by Jhariya, their forefather
though holdings and revenue records are joint, but
partition has taken place 40 years prior to filing
of the suit on 18.3.1989 and in accordance with said
partition they have constructed houses separately
and also cultivating the suit land separately. The
land shown in Schedule “A, B, C, D & E” belonged to
plaintiffs No.1 to 7 and only the land shown in

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6(1904) 31 Cal 262

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Schedule “F” belonged to the defendants, as such,
they are entitled for decree of declaration of title
on the basis of earlier partition alleged to have
taken place 40 years prior to the date of
institution of the suit. The defendants filed their
written statement and pleaded that since they have
large family, therefore, for sake of convenience,
the parties have constructed the houses separately
and cultivating separately, but there is no
partition and their share were never defined
separately and therefore, they unnecessary create
dispute in performance of agricultural operation and
that is the reason they had filed an application for

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partition before the Tahsildar which was got
adjourned by the plaintiffs for getting their title
adjudicated by order dated 14.7.88 (Ex.P-1).
Plaintiffs' witness No.1 Lohara Ram (PW-1) in his
cross-examination before the Court has clearly
stated that among the parties partition has not been
taken place as per law, but the Tahsildar has made
partition and the parties are cultivating as per
their convenience. Plaintiff's witness No.2-Penganga
(PW-2) has also stated in the same line stating that
as per convenience they are cultivating and staying
in the houses separately. Jageshwar (PW-3) has also

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stated that Tahsildar has made partition. Similarly,
plaintiff's witness No.4-Jaggu Ram (PW-4) in para-4
has also stated that since they have large family,
therefore, as per their convenience they are living
separately. The defendants have also stated about
the partition made by Tahsildar, but the fact
remains that fard batwara was prepared by Tahsildar
to give effect to partition, but thereafter question
of title has been raised and the matter was
adjourned giving time to the plaintiffs to get the
title adjudicated before the jurisdictional Civil
Court and partition proceeding could not be
concluded by the Revenue Court.

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15. Pleadings made and statements of the parties available on record would show that the parties are living separately and cultivating separately as per their convenience as their family is big and number of family members are more, but the fact remains that there is no actual partition among them defining their actual shares and there is no severance of status and their shares are not defined by the parties themselves. Merely staying separately

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in separate houses in joint family property by
makingconstructionandmerelycultivating
separately, it cannot be held that joint ownership

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has been terminated and the shares vest in them in
severalty as the plaintiffs and their witnesses have
clearly stated that only for sake of convenience
they are staying separately and cultivating
separately and no partition has taken place among
them and that is the reason defendants No.1 and 2
made an application for partition before the
Tahsildar vide Exs.P-1 and P-2 in which fard batwara
was also prepared by Tahsildar dividing the shares
between the parties, but ultimately at the instance
of the plaintiffs, time was given to get the title
adjudicated before the Civil Court, as such, there
is overwhelming evidence on record to hold that
there is no partition either oral or by metes and
bounds severing the status of joint family property
into separate property of the parties which can be
styled as partition resulting into division of lands
or other property jointly held by them and it cannot
be said to be partitioned as held by Their Lordships
of the Supreme Court in the matter of Shub Karan
Bubna(supra).

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16. The judgment of the Supreme Court in the matter of Ratnam Chettair (supra) relied upon by learned counsel for the appellants/plaintiffs is clearly inapplicable to the facts of the present case as in

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Ratnam Chettair(supra) the Supreme Court laid down
the principle of law as to when partition already
made can be re-opened as it cannot be re-opened
unless it is obtained by fraud, coercion
misrepresentation or undue influence as in the
instant case, finding of this Court is also that
there is no partition between the parties,
therefore, it does not help the appellants herein.

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17.In view of above-stated legal analysis, the
first appellate Court is absolutely justified in
holding that no partition in their family has taken
place between the parties herein and nature of the
property remained joint and that is the reason
defendants NO.1 and 2 have filed an application for
partition of the holdings before the Tahsildar vide
Ex.P-1, as such, I do not find any perversity or
illegality in the said finding recorded by the first
appellate Court. The first appellate Court has
rightly set aside the judgment and decree of the
trial Court, which is hereby affirmed, as such, the
substantial question of law is answered in favour of
the defendants and against the plaintiffs.

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18.Accordingly, the second appeal being devoid of

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merit is liable to be and is hereby dismissed
leaving the parties to bear their own cost(s).

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19.A decree be drawn-up accordingly.

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 Sd/-
 (Sanjay K.Agrawal)
 Judge

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B/-

Shiv Balak v. Dalpat

Case brief

What is this about?

What did the court decide?

Shiv Balak v. Dalpat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

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