Panka (Died and Deleted) (Through Legal Hiers) Vs Smt. Bhanmati (Died) Through Legal Heirs

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2025:CGHC:16241

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Reserved on 11-04-2025

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Pronounced on 09-06-2025

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SA No. 378 of 1992

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1 - Panka (Died And Deleted) (Through Legal Heirs) In Compliance Of Honble Court Order Dated 14-06-2024 And 23-08-2024.

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1.1 - 1a Sundarlal S/o Late Panka, Aged About 45 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.2 - 1b Ghasiya S/o Late Panka Aged About 70 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh..

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1.3 - 1c Leeladhar S/o Late Lakhan Aged About 35 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.4 - 1d Dhansingh S/o Late Lakhan Aged About 32 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.5 - 1e Kamlesh S/o Late Lakhan Aged About 28 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh. 1.6 - 1f Gajendra S/o Late Lakhan Aged About 25 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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2 - Panku (Died And Deleted) (Through Legal Heirs) In Compliance Of Honble Court Order Dated 14-06-2024 And 23-08-2024. 2.1 - 2a Somaru S/o Late Panku Aged About 56 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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3 - Ratiram (Died And Deleted) (Through Legal Heirs) In Compliance Of Honble Court Order Dated 14-06-2024 And 23-08-2024.

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3.1 - 3a Banuram S/o Late Ratiram Aged About 45 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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3.2 - 3b Devlal S/o Late Samundlal Aged About 27 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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3.3 - 3c Thamesh S/o Late Samundlal Aged About 20 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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4 - Guman (Died And Deleted) (Through Legal Hiers) In Compliance Of Honble Court Order Dated 14-06-2024 And 23-08-2024.

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4.1 - 4a Laxmu S/o Late Guman Aged About 65 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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4.2 - 4b Baisakhu S/o Late Guman Aged About 60 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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4.3 - 4c Nathulal S/o Late Guman Aged About 55 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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5 - Raturam S/o Baratia Aged About 40 Years Cultivator Kalar, R/o Village Bhanpuri, Tahsil Kondagram, District Bastar. Chhattisgarh.

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6 - Lachhan (Died And Deleted) (Through Legal Heirs) In Compliance Of Honble Court Order Dated 14-06-2024 And 23-08-2024.

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6.1 - 6a Aayut Ram S/o Late Manku Aged About 34 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh. 6.2 - 6b Savali W/o Late Anjori, Aged About 25 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District - Kondagaon, Chhattisgarh.

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6.3 - 6c Rohit Kumar S/o Late Anjori Aged About 18 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District - Kondagaon, Chhattisgarh

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6.4 - 6d Maleshwar S/o Late Kamluram Aged About 22 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District - Kondagaon, Chhattisgarh.

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6.5 - 6e Ramlal S/o Late Kamluram Aged About 28 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District - Kondagaon, Chhattisgarh. 6.6 - 6f Lalit S/o Late Kamluram Aged About 24 Years R/o Village - Bhanpuri, Tehsil - Kondagaon, District - Kondagaon, Chhattisgarh

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... Appellants/defendants.

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versus

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1 - Smt. Bhanmati (Died) Through Legal Heirs In Compliance Of Honble Court Order Dated 27-11-2024.

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1.1 - 1a. Smt. Sushila Wd/o Late Chedilal Aged About 45 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.2 - 1b. Bholeshwar S/o Late Chedilal Aged About 32 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.3 - 1c. Lokesh S/o Late Chedilal Aged About 20 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.4 - 1d. Kamlesh S/o Late Chedilal Aged About 18 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.5 - 1e. Rajesh S/o Late Motilal Aged About 19 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.6 - 1f. Saroj D/o Late Motilal Aged About 32 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.7 - 1g. Kavita D/o Late Motilal Aged About 19 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.8 - 1h. Reena D/o Late Motilal Aged About 16 Years (Through Natural Guardian Mother Namely Supan, Wd/o Late Motilal, Age About 47 Years.) --- R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.9 - 1i. Supan Wd/o Late Motilal Aged About 45 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.10 - 1j. Pitamber, S/o Late Motilal Aged About 30 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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1.11 - 1k. Raju S/o Late Motilal Aged About 25 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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2 - Smt. Bhagwati (Died) Through Legal Heirs In Compliance Of Honble Court Order Dated 27-11-2024.

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2.1 - 2a. Surajlal S/o Late Phulsingh Aged About 50 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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2.2 - 2b. Ramraj S/o Late Phulsingh Aged About 45 Years R/o Bhanpuri, Tehsil - Kondagaon, District Kondagaon, Chhattisgarh.

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... Respondents/plaintiffs

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For appellants	: Mr. Sunil Otwani, Mr. Shobit Kosta and Mr. Rohan Shukla, Advocates.
For Respondents	: Mr. Prafull Bharat, Sr. Advocate with Mr.
	Akash Pandey, Mr. Keshav Dewangan and
	Mr. Mayank Chandrakar, Advocates.

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(SB: Hon’ble Mr. Justice Narendra Kumar Vyas)

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C A V Judgment

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This is defendants’ second appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 08-08-1992 passed by First Additional District Judge, Bastar, Jagdalpur in Civil Appeal No. 4-A of 1987 by which the learned lower Appellate Court has allowed the appeal filed by the plaintiffs and set aside the judgment and decree dated 22-01-1985 passed by the learned Second Civil Judge, Class II, Jagdalpur in Civil Suit No. 11-A/84.

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The parties are described as per their status before the learned trial Court.

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This appeal was admitted by this Court on 25-09-1995 on the following substantial questions of law.

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“(I) If the finding given by the First Appellate Court to the effect that the land, which is in excess of the equal share allotted to the two brothers is beyond the pleadings of the parties as well as the evidence available on record and as such is perverse?

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(ii) Has the lower Appellate Court erred in passing a decree of possession on the lands

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without determining those lands, on which possession has to be delivered to the plaintiffs?

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(iii) Was the lower Appellate Court erred in passing a decree for possession without determining as to on what date the plaintiff was dispossessed from the relevant land?

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The brief facts of the case are that the plaintiffs filed a civil suit on 31-01-1984 before the learned Civil Judge Class-II for declaration of title, permanent injunction and possession of the suit land described in the plaint mainly contending that:

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(a) The plaintiffs and defendants are Hindus and governed by Mitraksha Branch of Hindu Law. As per genealogy of the family Raghu was the grand father of plaintiffs and defendants, who had two sons namely Baratia and Ghadwa. As per revenue records 46.23 acres of land was recorded in the name of Raghu who died between the year 1926-1935. It is also the case of the plaintiffs that after death of Raghu, partition took place between Baratia and Ghadwa and according to partition, 20 acres of land was given to Baratia and Ghadwa was given 36.70 acres of land which has been described in Schedule “A & B” of the plaint and both brothers were residing separately, earning and maintaining their livelihood separately.

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(b) It has also been contended that plaintiffs’ father Ghadwa died in the year 1947-48, he has earned some more land by his income and as per revenue records he is having 52.80 acres of land. The said land has been recorded in the name of Mangaldai after death of her husband Ghadwa who died in the year 1980-1981 and at the time of

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death of Mangaldai, the plaintiffs are having 52.32 acres of land as described in Schedule “C” of the plaint. It has been further contended that Mangaldai had two daughters only and no one was there to do the agricultural work, as such, it was agreed by the defendants that they will assist the plaintiffs’ mother in agricultural work and they will also pay half of the Lagaan and accordingly Mangaldai allowed them to use the agricultural land for earning purpose only. This practice was continued till the year 1981-82 when the defendants have initiated proceeding for partition of land. Then only it was revealed to the plaintiffs that after 1962 without permission of the plaintiffs, their mother Mangaldai and even without any order of the Revenue Officer, with the collision of one of the Revenue Officer who was involved in the manipulation of the records, defendants have recorded their names in the revenue records. It has also been contended that the presence and consent of Mangaldai was recorded which is incorrect fact and also started proceeding for partition before the Tahsildar, Kondagaon which is registered as case No. 4-A of 1982-83. The said application was decided in their favour. The names of the plaintiffs and defendants were also directed to be recorded in the revenue records. By the impugned order passed by the Tahsildar, the plaintiffs have been given 1/8 share of the property which is illegal as partition has already been taken place between Ghadwa and Baratia.

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(c) It is also the case of the plaintiffs that on the strength of the order passed by the Tahsildar, the defendants started creating hindrances in peaceful possession of the suit property which has necessitated

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the plaintiffs to file a civil suit. On the basis of the plaint, the plaintiffs have prayed for declaration that they are the title owners of the suit property described in Schedule “C” of the plaint and also prayed for grant of permanent injunction restraining the defendants from interfering in the peaceful possession of the suit property described in Schedule “C”. The plaintiffs have also prayed that the defendants be directed to vacate the suit property mentioned in Schedule “C” except suit property described in Schedule “D” of the plaint.

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The defendants have filed written statement denying the averments made in the plaint mainly contending that no partition has taken place between Baratia and Ghadwa, as such they are members of the joint family and they are jointly in possession of the property left by Raghu. It is empathetically denied that Baratia was given 20 acres land and Ghadwa was given 36.70 acres land in partition and also denied the contents of Schedule “A” and “B” of the plaint. It is also denied that Ghadwa has acquired 52.80 acres land, in fact it is a joint property of Baratia and Ghadwa. It is specifically denied that the property described in Schedule “C” belongs to plaintiffs only. It has been further submitted that after death of Ghadwa it was wrongly recorded in the name of Mangaldai in the revenue records, as such, after death of Mangaldai, plaintiffs cannot become owners of the property. It is also denied that any manipulation has been done in the records but on due process of law the names were recorded in the revenue records. It is also denied that the plaintiffs have given the land for livelihood on the condition that they will vacate the possession of the land. It is specifically contended that it

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was a joint property of the joint family and would pray for dismissal of the suit.

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On the pleadings of the parties learned trial Court has framed nine issues and Issue Nos. 1, 2, 3 and 4 are relevant which are extracted as under:

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“1क्यारघुकलारकोमृत्युउपरान्तउसकीद्वाराछोड़ीसप्पत्ति�उसके पुत्रबरतितयातथाधडवाकेबीचविवभाजि&तहोकरदोनोकेनाम रा&स्वपत्रोमेअलगअलगचढगई?

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2- क्यारघुद्वाराछोडीसम्पत्ति�मेबरतितयातथाधड़वासंयुक्तपरिरवार कोसम्पत्ति�केरूपमेशाविमलशरीककाविब& रहे।

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3- अ- क्याधडवाकेमृत्युकेसमयउसकेव्यविक्तगतस्वत्वपर 52.80 एकड़भूविममौ&ूदथी&ोउसकीस्वअर्जि&तथी?

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ब- क्यारघुकलारद्वाराछोड़ीसम्पदामन्गलदेईकेनामद&; हुई&ो मन्गलदेईतथावादीगणोकेस्वाविमत्वातिधकारकीसम्पदाहै?

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4- अ- क्याप्रतितवादीगणोनेअवैधरूपसेअपनानामविबनावादीगणोतथा स्वग?यमन्गलदेईकीविबना&ानकारीवसहमतितकेरा&स्वपत्रोमे चढवात्तिलया?

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ब- क्याप्रतितवादीगणकारा&स्वपत्रमेनाम&ोड़े&ानेबाबत&ानकारी वादीगणोकोसन 1982 मेहुई?”

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The plaintiffs to substantiate their case have exhibited the documents namely Ex P-1: Copy of Jamabandi of Year 1927-28 showing Gadhwa having land about 23.12 acres, Ex P-2: Copy of Jamabandi of Year 1926-27 showing Raghu having land about 46.23 acres. Ex P-3: Copy of Jamabandi of Year 1935-36 showing Gadhwa having land about 36.70 acres, Ex P-4: Copy of Jamabandi of Year 1935-36 showing Bartiya having land about 20 acres., Ex P-5: Copy of Jamabandi of Year 1945-46 showing mutation of Mangaldai name in place of Gadhwa, Ex P-6: Copy of Jamabandi of Year 1947-48 showing Mangaldai having land about 52.40 acres, Ex P-7: Partition

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order passed by the Tehsildar, Kondagaon dated 7/9/83 granting 1/8 share each to plaintiffs and defendants., Ex P-8 to 12: Copy of Revenue records of defendants and Ex P-13: Copy of Revenue records showing the name of the plaintiffs and defendants jointly over the suit property and to substantiate their case have examined witnesses namely Bhagwati (PW/1), Manmati (PW/2), Bhagiram (PW/3), Bijju (PW/4) and Sonsai (PW/5).

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The defendants to substantiate their case have exhibited document (Ex D-1) copy of revenue records showing the names of the plaintiffs and defendants were recorded jointly over the suit property with the consent of Mangaldai and have examined Ratiram (DW/1) and Saradhu Ram (DW/2).

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Learned trial Court on the basis of evidence, material on record has non-suited the plaintiffs by recording its finding that by the statement of the plaintiffs Bhagwati and Manmati, it is not proved that the land was given to the defendants for maintaining livelihood. Learned trial Court has also recorded its findings that if the land was self-acquired property of Baratiya, then plaintiffs should have established that when the property was purchased by Ghadwa and if the land has been given to Ghadwa by the State Government, then the lease should have been placed on record, but no such material has been placed on record. Learned trial Court has also recorded its finding that merely recording the names in revenue records, it cannot be held that the plaintiffs were title holder of the suit property and accordingly learned trial Court has dismissed the suit.

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Being aggrieved with this order, the plaintiffs preferred First Appeal before the learned District Judge, Jagdalpur which was registered as Appeal No. BA/85 and subsequently it was renumbered as 4-A/89 mainly contending that the learned trial Court on the basis of perverse finding has dismissed the suit and has not taken into consideration the entire evidence, material on record. It has also been contended that the learned trial Court has not given any clear finding on Issue Nos. 6, 7, 8 and 9 and committed illegality in answering these issues in negative. It has been further contended that the plaintiffs are entitled to get half of the share of the suit land. Thus, it has been prayed for allowing the appeal. Learned First Appellate Court vide its judgment and decree dated 8-8-1992 has allowed the appeal which is being challenged by the defendants in the second appeal on the substantial question of law as detailed above.

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Submission on behalf of the appellants:

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Learned counsel for the appellants/defendants would submit that:

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(a) The finding recorded by the learned First Appellate Court is perverse as it is beyond pleadings and evidence adduced by the plaintiffs. He would further submit that the learned First Appellate Court in its paragraph 17 has recorded perverse finding even though there is no evidence, sale deed in respect of excess land recorded in the name of Ghadwa, as such it is presumed that said land after partition was self acquired property of Ghadwa. The said finding recorded by the First Appellate Court is merely based on assumption and there is no foundation or any pleading, document were placed

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on record. It has been further contended that learned First Appellate Court erred in passing the decree of possession without determining those lands on which the possession has to be delivered to the plaintiff. It has been further contended that the plaintiffs have nowhere pleaded in their plaint that from which Khasra number they have been dispossessed and even there is no pleading regarding description of suit property from where they have been dispossessed on the basis of such vague pleading the First Appellate Court has committed illegality in allowing the appeal. It has also been contended that no definite date of dispossession/discontinuance of schedule property has been described, therefore, learned First Appellate Court should have held that the suit is barred by limitation under Article 142 of the Limitation Act and would pray for allowing the appeal.

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(b) To substantiate his submissions he has referred to the judgments of Hon’ble Supreme Court and this Court in cases of Kalyani (dead) by Lrs vs. Narayanan and others , reported in AIR 1980 SC 1173 , Prahlad Pradhan vs. Sonu Kumhar , reported in (2019) 10 SCC 259 , Syed and Company and others vs. State of Jammu and Kashmir , reported in (1995) Supp (4) SCC 422 , Boodireddy Chandraiah v. Arigela Laxmi and another, reported in 2007 (8) SCC 155, Uttam vs. Saubhag Singh and others, reported in 2016 (4) SCC 68, Bachhaj Nahar vs. Nilima Mandal and others, reported in 2008 (17) SCC 491, Jugraj Singh and another vs. Jaswant Singh and others, reported in 1970 (2) SCC 386, State of Chhattisgarh and another vs. Smt. Indrawati and others,

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reported in ILR 2019 Chh,34, Shyam Sunder Prasad and others vs. Raj Pal Singh and another, reported in 1995(1) SCC 311 .

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Submission on behalf of plaintiffs/respondents:

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(a) On the other hand, Mr. Prafull Bharat, learned Sr. Advocate assisted by Mr. Akash Pandey, advocate would submit that the finding recorded by the learned First Appellate Court is legal and justified which does not suffer from any perversity or illegality. It has been further contended that the defendant himself admitted that after death of Raghu, Baratia and Ghadwa separated themselves, as such, no further evidence is required to prove. The said partition of Bharatia and Ghadwa is also established from the exhibited documents. To substantiate his submission he has referred to Jamabandi (Ex P-1 to P-12). Thus, he would submit that the aforesaid documentary evidence is sufficient to record a finding that partition has taken place, as such he would submit that the learned First Appellate Court has rightly decided the appeal in favour of the plaintiffs.

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(b) It has been further contended that in the application filed under Order 39 Rule 1 & 2 CPC the defendants again admitted the fact that Baratia and Ghadwa after the death of Raghu partition had partitioned the property between themselves. Since the defendants have admitted this fact, therefore, no further evidence is required. Thus, he would submit that the substantial question of law No. 1 framed by this court deserves to be answered against the defendants and in favour of the plaintiffs.

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(c) So far as substantial question No. 2 and 3 are concerned, it has been contended by learned Sr. counsel that the learned First Appellate Court has passed the decree of possession after determining the land mentioned in Schedule “D” of which possession has to be delivered to the plaintiffs. It has been further contended that to appreciate Schedule C & D of suit property, Ex P-6 is the relevant document which shows that the entire land ie., 52.40 acres of land was recorded in the name of Mangaldai ie., mother of the plaintiffs and Ex P-3 is another document which has relevance as it is the Jamabandi which shows that after the partition between Ghadwa and Baratiya, 36.70 acres of land was recorded in the name of Ghadwa.

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(d) Thus, he would pray that sufficient documents were produced before the learned trial Court which have been disbelieved by the trial Court without any reason and the same has been rectified by the learned First Appellate Court. Thus, he would pray that the substantial questions No. 2 and 3 be decided in favour of the plaintiffs. It has been further contended that parties have pleaded and led evidence, as such, even if no issues have been framed by the learned trial Court, the entire trial is not liable to be vitiated as it is not vital enough to set aside the judgment and decree passed by the first appellate Court. To substantiate his submission he has referred to the judgment of co-ordinate Bench of this Court in the case of Bechan Singh and others vs. Ramvati and two others (SA No 113 of 2020) decided on 17-12-2024 and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the records of the both courts below.

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Discussion and finding on substantial question of law No. 1:

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The learned first appellate Court while deciding the issue No. 3(a) in paragraph 17 has recorded its finding that Raghu owned 46.23 acres land which has been divided between his two sons Baratia and Ghadwa and the plaintiff has acquired more land by earning from agriculture land without any document i.e. sale deed or relevant documents to demonstrate that it is a self acquired property of Ghadwa. This finding has been recorded by the appellate Court by reversing the burden of proof upon the defendants by recording its finding that the defendants have not produced any document to establish that the excess land recorded in the name of Ghadwa is self acquired property of Ghadwa, accordingly, it has held that the land measuring 52.80 acres is a self-acquired property of the plaintiffs’ father. From the above discussion, it appears that the learned first appellate Court has struggled to record such finding without any evidence, material on record ignoring the basic law of evidence that it is for the plaintiffs to plead and prove that how they have acquired the property excess to the joint properties and has committed illegality in shifting the burden to prove upon the defendants.

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Thus, the finding recorded by the learned first appellate Court suffers from perversity. Even the first appellate Court while allowing the appeal has recorded its finding on the basis of Ex P-9 to P-12 which are the Kishtbandi Khatauni of suit property and has recorded its finding that a partition has been taken place between Ghadwa and

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Baratia, as such, they are not the members of joint Hindu family. Though the plaintiffs’ witness Bhagwati (PW/1) in the cross-examination has admitted that when Baratia and Ghadwa have separated, is not known to her as she was small kid. This finding is against the well settled position of law that there is a presumption regarding joint Hindu family and who claims that partition has been taken place, it has to be proved by the person who claims that he is living separately and has acquired the property other than the nucleus of the joint Hindu family property. It is well settled principle of Hindu Law that presumption lies that every Hindu family is joint in food, worship and state and in absence of any proof of division, such legal presumption continues to operate in the family. The burden therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claiming that some properties out of entire lot of ancestral properties are his self-acquired property. The Hon’ble Supreme Court in case of Adiveppa & Others vs. Bhimappa & Another reported in 2017 (9) SCC 586 has held in paragraphs 19 to 23 as under:

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“19. It is a settled principle of law that the initial burden is always on the plaintiff to prove his case by proper pleading and adequate evidence (oral and documentary) in support thereof. The plaintiffs in this case could not prove with any documentary evidence that the suit properties described in Schedule ‘B’ and ‘C’ were their self-acquired properties and that the partition did not take place in respect of Schedule ‘D’ properties and it continued to remain ancestral in the hands of family members. On the other hand, the defendants were able to prove that the partition took place and was acted upon.

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In order to prove that the suit properties described in Schedule ‘B’ and ‘C’ were their self-acquired properties, the plaintiffs could have adduced the best evidence in the form of a sale-deed showing their names as purchasers of the said properties and also could have adduced evidence

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of payment of sale consideration made by them to the vendee. It was, however, not done.

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Not only that, the plaintiffs also failed to adduce any other kind of documentary evidence to prove their self-acquisition of the Schedule ‘B’ and ‘C’ properties nor they were able to prove the source of its acquisition.

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It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See-Mulla - Hindu Law, 22nd Edition Article 23 "Presumption as to co-parcenary and self acquired property"- pages 346 and 347).

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In our considered opinion, the legal presumption of the suit properties comprising in Schedule ‘B’ and ‘C’ to be also the part and parcel of the ancestral one (Schedule ‘D’) could easily be drawn for want of any evidence of such properties being self-acquired properties of the plaintiffs. It was also for the reason that the plaintiffs themselves had based their case by admitting the existence of joint family nucleolus in respect of schedule ‘D’ properties and had sought partition by demanding 4/9th share.”

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In light of above legal provisions, if the evidence of the plaintiffs and findings of the trial Court are examined, it is quite vivid that the plaintiffs’ star witness Bhagwati (PW/1) has admitted in the crossexamination that when Baratia and Ghadwa have been separated is not known to her as she was younger. She has also stated that how his father has enlarged the area of the land is not known to her. She has admitted that Baratia was absconded 50-60 years ago and at that time his father was alive. She has stated that after absconding the land is not used by her father, but by one Shyamlal Bangali. She has also stated that she is not aware that prior 20-22 years, the land was recorded in the account of joint family. She has also admitted that the defendant Panka told her mother that he will look after her,

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but the land may be given for livelihood and also stated that oral discussion had taken place and no documentary evidence was prepared. She has also stated that the names of defendants have been recorded in the revenue records. The other witness Bijju (PW/ 4) has admitted in the cross-examination that when Raghu was alive at that time Ghadwa and Baratia were living jointly and after death of Raghu they have been separated, but no documents were prepared or Court proceedings have been taken place. He has also admitted that whatever the land given to Ghadwa, he cannot give the details of the said land. The witness Sonsai (PW/5) has admitted in the cross-examination that when the partition has taken place between two brothers, he was not there and he was also not aware that the partition was taken place or not. He has also stated that what was discussion made between Mangaldai and Panka he is not aware.

¶117

Defendants examined Ratiram (DW/1) who has stated that no partition has taken place between Ghadwa and Baratia and in the crossexamination he has stated that the rent of the land is jointly paid by the plaintiffs and defendants. He has also stated that Baratia and Ghadwa were jointly earning as no partition has taken place. He has also stated that no rent receipt has been submitted by him. The witness Saradhu Ram (DW/2) has also stated that no partition has taken place between Baratia and Ghadwa which remained unrebuttal in the cross-examination. He has also stated that earlier the land was recorded in the name of Baratia and subsequently it has been recorded in the name of Ghadwa. He has also stated that when Ghadwa expired at that time area of the land was 52.80 acres. The

¶118

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learned trial Court after appreciating the evidence and material on record has given its finding that no partition has been taken place between Ghadwa and Baratia. The trial Court while recording its finding has assigned the reason that if partition has been taken place between both the brothers, then the land should be recorded equal share, but from perusal of Ex P-4, 20 acres land has been recorded in the name of Baratia and in the name of Ghadwa 23.12 acres and even no order of Revenue Court with regard to partition or any documentation regarding partition has been produced by the plaintiff.

¶120

The trial Court has also recorded its finding that on merely recording the name in the revenue record, it cannot be established that actual partition has been taken place between the parties and the trial Court has also recorded its finding that the defendant’s witness has categorically stated that no partition has been taken place and the plaintiffs themselves examined as PW/1 and PW/2 as they have not seen whether the partition has been taken place or not. Accordingly, it has dismissed the suit. The plaintiffs have not produced any partition deed or documentation in this regard though the oral partition is permissible and can be proved if plaintiffs examined testimony from those who were present or who were aware of it. The plaintiffs should have produced the documents, revenue records or other evidence that supports the oral partition.

¶121

Even it can be admitted by the parties or acknowledged and the plaintiff’s need to clarify the facts and circumstances surrounding claims in their pleadings and the burden remains with the plaintiffs. The learned first appellate Court while examining the land described

¶122

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in Schedule “C” and “D” has gone through the Ex P-2, Ex P-3 and P- 6 which are the revenue records and has recorded its finding that in the name of Mangaldai to the extent of 52.80 acres land have been recorded which clearly demonstrates that plaintiff’s father Ghadwa is hard worker and gentleman and by doing hard working he has acquired more land and increase his account, as such, the plaintiffs apart from their land are in possession of the excess land which is forcefully dispossessed by the defendants without any document i.e. sale deed or lease deed how the area of the land have been increased. Learned first appellate Court without any evidence has recorded its finding that the plaintiffs were earning from 28 acres land which have been taken possession by the defendants and the property mentioned in the Appendix C and D are also tallied from the certified copy of Jamabandi and accordingly, it has passed the decree granting possession. This finding is perverse and contrary to the record as well as position of law as a person who claims that he has acquired the property by self labour or not from the joint nucleus of joint Hindu family burden lies upon him, as such, the finding recorded by the learned first appellate Court suffers from perversity and illegality.

¶124

It is also well settled position of law that the plaintiffs must present strong case with credible evidence to convince that they are entitled to seek partition which is missing in the present case, therefore, for the reasons and discussions made above, it is quite vivid that the finding of the learned first appellate Court regarding excess of the equal share allotted to two brothers is contrary to the evidence on

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record, as such, it is perverse, accordingly, substantial question of law No. 1 framed by this Court is answered in favour of the defendants.

¶127

Discussion and finding on substantial question of law No. 2:

¶128

It is well settled position of law that the partition should be metes and bounds as the partition means dividing jointly owned property into separate portion with defines boundaries unless the description of boundaries of partition land mentioned in the plaint it cannot be executable. It is necessary for the plaintiff to ascertain a description sufficient to identify it including boundaries are numbers from the settlement record and in absence of such description it cannot be executable as it is a essential element of partition. The partition is an act by which the nature of the property is changed, reflecting an alteration in ownership. The partition has been defined with regard to property law as under:

¶129

“a division of property, specially reality, among joint owners.”

¶130

The advance law lexicon third addition defines partition in the following terms:

¶131

“Partition is a division between co-owners (whether coparceners, joint-tenants in common) of lands, tenements and heriditaments held by them, the effect of such division being that the joint ownership is terminated, and the shares of the parties vested in them in severalty

¶132

[in mitakshara law, it] is the adjustment of diverse rights regarding the whole by distributing them on particular portions of the aggregate.

¶133

Is a separation between joint owners or tenants in common of their respective interests in land, and setting apart such interest, so that they may enjoy and possess the same in severalty.”

¶134

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¶135

From the definition clause of partition, it is quite vivid that it involves dividing the property based on precise boundaries and measures. The learned first appellate Court has passed the decree granting the declaration and possession of suit property described in Schedule “C” and “D” while considering the Ex. P-6. This part of decree cannot be held to be illegal as in the Ex. P-6 which is Jamabandi of the property wherein the description of the property has been given specifically, as such trial Court has not committed any illegality or perversity, as such, substantial question of law No. 2 is answered in favour of the plaintiffs.

¶136

Discussion and finding on substantial question of law No. 3:

¶137

From the bare perusal of the plaint, it is quite vivid that the plaintiffs have nowhere pleaded when they were dispossessed from the suit property which is mandatory for the plaintiffs to plead and prove. In fact the plaintiffs have pleaded in paragraph 5 of the plaint that with the collusion of Revenue Officer, without permission and consent from Mangaldai the defendants have recorded their names after the year 1962, but no evidence to record such pleading was placed on record, as such, the pleadings are very vague and if the plaintiffs are aware that the names of the defendants have also been recorded sometimes after the year 1962, as such, they should file the suit within 12 years when their names have been recorded in the revenue record mentioning the possession of the defendants by dispossessing them. The plaintiffs have nowhere challenged the recording the names of the defendants, but have filed suit when the mutation

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order was passed by the Tahsildar in the year 1982 which cannot give them cause of action to file the suit in the year 1984.

¶140

Thus, in absence of any specific pleading when they have been dispossessed from the suit property and together pleadings made in paragraph 5 of the plaint, it is quite vivid that the suit is barred by limitation. Even otherwise, as per Article 64 of the Limitation Act, it is mandatory for the plaintiffs to specifically plead when they have been dispossessed from the suit property. In absence of any such pleading in this regard the suit is held to be barred by limitation. The defendants have submitted the order of the Nayab Tahsilar (Ex D-1) to demonstrate that in pursuance of the order of Nayab Tahsildar their names have been recorded. Ratiram (DW/1) has also stated that in the year 1962, the land was recorded in their name in presence of Mangaldai with her consent only and the similar statement was also given by Saradhu Ram (DW/2). The plaintiffs have nowhere challenged the order of mutation by which names of defendants alongwith Mangaldai were recorded, but have filed the suit challenging subsequent order of partition of the suit property as detailed in the schedule annexed with the plaint.

¶141

Article 64 of the Limitation Act deals with the suit for possession of immovable property based on previous possession and not on title, when the plaintiffs while in possession of the suit property has been dispossessed and provides period of limitation of 12 years and the time begins to run from the date of dispossession, as such it is incumbent upon the plaintiffs to plead and prove that when they were dispossessed, but in the entire plaint or evidence adduced by the

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plaintiffs it is not proved when the plaintiffs were dispossessed. The Hon’ble Supreme Court in case of Shyam Sundar Prasad & Others vs. Raj Pal Singh & Another reported in 1995 (1) SCC 311 has held in paragraphs 1 and 4 as under:

¶144

“1. The trial court decreed the suit, the appellate court found that though the plaintiff had title and possession at one point of time but there is no definite date of dispossession or discontinuation of the plaint- schedule property. The plaintiff had failed to prove possession of the suit land within 12 years of the suit when the possession was discontinued. It is not known as to when he came into possession. The suit was, therefore, barred by limitation under Article 142 of the Limitation Act, 1908 for short "the old Act". It was accordingly dismissed.

¶145

The question, therefore, is on whom the burden of proof lies in a suit based on title and for possession. In view of Article 142 of the old Act, the burden, undoubtedly, is on the plaintiff-appellant to prove that he has title to and has been in possession and he was dispossessed and discontinued his possession within 12 years from the date of the filing of the suit. It is necessary for the plaintiff, therefore, when the suit is laid on the basis of title, to establish not only that he has title to the property but also he was dispossessed or discontinued his previous possession within 12 years on the date of the filing of the suit. If the suit is merely based on adverse possession, then Article 144 gets attracted. The defendant did not come to the court to establish his adverse possession by prescription. The burden of proof, therefore, does not rest on him. It is, therefore, for the plaintiff/appellant to prove that not only he had title to the plaint schedule property but also he had possession within 12 years and he was dispossessed or discontinued his possession within the period of limitation prescribed under Article 142. The burden, therefore, is always on him to prove that he had possession within 12 years from the date of the filing of the suit and he has title to the property. The burden does not shift on the defendant. The burden of proof, therefore, has rightly been placed on the appellant by the appellate court. We do not find any error of law in the findings recorded by the appellate court warranting interference, though the High Court dismissed the appeal in limine. The appeal is accordingly dismissed but without costs.”

¶146

Thus, substantial question of Law No. 3 is answered in favour of the plaintiffs.

¶147

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¶148

From the above submission, it is quite vivid that learned first appellate Court while allowing the appeal has recorded perverse finding regarding the excess of equal shares allotted to the two brothers without any pleading, evidence on a perverse finding. The learned appellate Court has not committed error in passing the decree of possession on the lands determining those lands on which possession has to be delivered to the plaintiffs. Similarly, without any finding regarding dispossession of the plaintiffs has granted the decree of possession which is nothing but suffers from perversity and illegality. Thus, the substantial question of law No. 1 and 3 framed by this Court are answered in favour of the defendants and substantial question of law No. 2 is answered in favour of the plaintiffs, which cannot come in rescue for plaintiffs to obtain decree of declaration, possession and partition, as such no relief can be granted to the plaintiffs.

¶149

Consequently, second appeal is allowed and the judgment and decree dated passed by the first appellate Court on 08.08.1992 is set aside and the judgment and decree passed by the trial Court on 22.01.1985 dismissing the suit is restored.

¶150