Noorjahan Bibi and Anr. Vs Sanaullah Ansari and Ors.

This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of reversal dated 07.02.2013 passed by the learned Principal District Judge, Palamau at Daltonganj in Partition Appeal No.55 of 2005 whereby and where under, the learned first appellate court has allowed the appeal on contest and dismissed Partition Suit No. 26 of 1997 of the court of Subordinate Judge-II, Palamau at Daltonganj.

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The brief fact of the case is that the plaintiffs-appellants filed Partition Suit No. 26 of 1997 in the court of Subordinate Judge-II, Palamau at Daltonganj claiming half share of the suit property.

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The case of the plaintiffs in brief is that the suit plot of area 17 decimals was recorded in the cadastral survey in the name of Hitnarain and Aliyar Dusadh both sons of late Kishun Dusadh. Hitnarain died leaving behind his daughter Hasani Devi while Aliyar left behind two sons Raghupat and Chhenu Dusadh. Hasani Devi became a widow and resided in her father’s house and also in her in-laws house. After death of Hitnarain, Hasani Devi inherited the half share of her father out of the suit land and sons of Aliyar Dusadh also inherited the remaining half share. The name of Hasani, Raghupat and Chhenu were recorded as per there share vide Mutation Case No. 581/78-79 which is still running. Hasani Devi vide a registered sale deed being sale deed no. 4285 sold her half share i.e. 8 ½ decimals of land to the plaintiffs and put the plaintiffs in possession. The land purchased by the plaintiffs was mutated in their name vide Mutation Case No.167/92-93. An Appeal No.51/92-93 was preferred by Raghupat which was dismissed by D.C.L.R., Hussainabad. Raghupat vide registered sale deed sold his share to the defendant nos. 1 and 2 and put them in possession. The defendant nos.1 and 2 filed Mutation Case No. 82/89-90 for 8 ½ decimals but the same was rejected by the Circle Officer, Hariharganj. Mutation Appeal No. 33/91-92 was preferred which was allowed by L.R.D.C. and Circle Officer was directed to allow mutation of 4 1/2 decimals of land in the name of defendant nos.1 and 2. Thus, these defendants owned and possessed 1/4^th share of the suit land by such purchase. The defendants again filed Mutation Case No. 77/89-90 and in collusion with the field staff

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got their names mutated for 4 ¼ decimals of land. Chhenu Dusadh sold 1/4^th share of the suit land to Nayeem and put him in possession but instead of 4 ¼ decimals of land Chhenu Dusadh in his sale deed sold 8 ½ decimals of land. The defendant no.5 is the son of Nayeer Azam. Nayeer Azam in presence of plaintiff no.2 orally gifted his 2 1/8^th decimals of land to his son Asagar Jilani who accepted the gift and came in possession of gifted land. The plaintiffs claim unity of title and possession and filed the suit for partition.

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The defendant no.1 in his written statement challenged the maintainability of the suit on various technical grounds and claimed that Hasani did not acquire any title. The defendant nos.1 and 2 claimed that they are in possession over the purchased land from Raghupat Dusadh.

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The defendant nos.3 and 4 in their joint written statement challenged the maintainability of the suit on various technical grounds and denied the averments made in the plaint. They claimed that Chhenu Dusadh transferred land of plot no. 610 in favour of Md. Nayeem and Md. Nayeem in turn transferred the 2 ¾ decimals of land in favour of defendant no.3 under sale deed dated 01.09.1992 and 1 ½ decimals in favour of defendant no.4 and put them in possession. The defendant nos.3 and 4 denied oral gift to the defendant no.5.

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The defendant no.5 in his written statement challenged the maintainability of the suit on various technical grounds and supported the plaint averments.

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On the basis of rival pleadings of the parties, the learned trial court settled the following six issues:-

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(I) Is the suit as framed maintainable? (II) Whether there is valid cause of action for the suit? (III) Whether there is unity of title and possession over the suit land between the parties of the suit?

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(IV) To what share the plaintiffs are entitled in the suit property?

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(V) To what relief or reliefs the plaintiffs are entitled? (VI) Whether Hasani Devi is the daughter of Hitnarain?

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In support of their case, the plaintiffs examined altogether eight witnesses and proved documents which have been marked Ext. 1 to Ext. 7. On the other hand, from the side of the defendants fourteen witnesses were examined and the defendants also proved the documents which have been marked Ext. A to Ext. C/2a.

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The learned trial court first took up issue nos. (III), (IV), (V) and (VI) and considering the evidence in the record came to the conclusion that there was unity of title and possession between the parties to the suit and answered the issues in favour of the plaintiffs. The learned trial court next took up issue no. (I) and held that the suit is maintainable. In respect of the issue no. (II) next taken up by the learned trial court, learned trial court arrived at the conclusion that there is cause of action for the suit and decreed the suit vide judgment dated 20.06.2005 in Partition Suit No. 26 of 1997.

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Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Partition Appeal No.55 of 2005 in the court of Principal District Judge, Palamau at Daltonganj which was ultimately heard and disposed of by the learned first

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appellate court by the impugned judgment and decree.

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The learned first appellate court first took up the issue nos. (III), (IV) and (VI) framed by the learned trial court and considered that as the evidence of P.W.6 that Hasani is the daughter of Hitnarain has remained un-assailed in his cross-examination so it is established that vendor of the plaintiffs namely Hasani is the daughter of Hitnarain but considering the fact that in the recital of Ext. 2 which is the sale deed; by which Hasani sold 8 ½ decimals of land to the plaintiffs, it was mentioned by the vendor Hasani that her father before his death partitioned the land with his brother i.e. paternal uncle of Hasani namely Aliyar Dusadh and on the basis of this admission, the learned first appellate court came to the conclusion that there is no unity of title and possession between the plaintiffs and the defendants and found fault with the learned trial court for ignoring this recital in the sale deed and as there was no unity of title and possession over the suit land so held that the suit for partition is not maintainable and decided the said issues accordingly. The learned first appellate court next took up the issue nos. (I), (II) and (V) settled by the learned trial court and in view of its finding in respect of other issues went on to hold that the suit is not maintainable. The plaintiffs do not have any cause of action. The plaintiffs are not entitled to any relief and set aside the impugned judgment and decree and allowed the appeal.

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It is submitted by the learned counsel for the appellants that the finding of the learned first appellate court regarding dismissal of the partition suit on the ground of lack of jointness of property is a perverse one. It is next submitted by the learned counsel for the

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appellants that the recital in the sale deed being unilateral document could not bind the plaintiffs. It is further submitted by the learned counsel for the appellants that Section 46 (3) of Chota Nagpur Tenancy Act, 1908 was wrongly been used for the purpose of dismissing the suit. Hence, it is submitted that the judgment and decree passed by the learned first appellate court being not sustainable in law be set aside and the judgment and decree passed by the learned trial court be restored after formulating appropriate substantial question of law.

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Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that the plaintiffs are claiming partition from the defendants not because they are the members of joint family rather on the ground that their vendors were the members of a joint family. The plaintiffs are claiming partition on the basis of Ext.2 that is the sale deed executed by Hasani Devi in their favour. The undisputed fact remains that in the sale deed which has been marked Ext.2 there is categorical recital by the vendor of the plaintiffs that her father namely Hitnarain partitioned with his brother Aliyar. Thus, since the very basis of the plaintiffs claiming partition is based on Ext.2 so the plaintiffs cannot disown the recital of Ext.2 wherein, it has categorically been mentioned by the vendor of the plaintiffs that the land which has been sold by her to the plaintiffs was already partitioned between her father Hitnarain and his brother Aliyar Dusadh. So therefore, this Court do not find any illegality on the part of the learned first appellate court on

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relying upon the recital of sale deed marked Ext.2 which is the document based upon which the plaintiffs have filed the suit for partition; to arrive at the conclusion that there being an admitted earlier partition, there is no unity of title and possession between the parties, which is sine-qua-non for maintaining the suit for partition.

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So far as the contention of the learned counsel for the appellants that the suit has been dismissed by applying Section 46 (3) of Chota Nagpur Tenancy Act, 1908 is concerned, it is pertinent to mention here that true it is in paragraph no.22 of the impugned judgment, the learned first appellate court has discussed the provision of Section 46 (3) of Chota Nagpur Tenancy Act, 1908 which mandates a sanction of the Deputy Commissioner for sale, exchange, gift, Will or lease by a member of inter alia a Scheduled Castes was. As it appeared from the surname Dusadh of the father of the vendor of the plaintiffs to the first appellate court, that the vendor of the plaintiffs may be a member of Scheduled Castes; so the first appellate court considered that without the prior sanction of the Deputy Commissioner, the sale deed is not to be recognized as a valid one, by inter alia a civil court in view of Section 46 (3) of Chota Nagpur Tenancy Act, 1908 which reads as under:-

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“ Section 46 - Restrictions on transfer of their right by Raiyat xxxxx xxxxx xxxx xxxxx (3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction. xxxxx xxxxx xxxx xxxxx”

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but that is not the reason why the suit has been dismissed by the first appellate court. The suit for partition has been dismissed because of the failure of the plaintiffs to establish unity of title and possession of the parties in view of categorical averments in the recital of the sale deed by the vendor of the plaintiffs that his father has already partitioned the land with Aliyar Dusadh.

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In view of the discussions made above, the finding of facts that there is no unity of title and possession has not been arrived at by the learned first appellate court by ignoring any admissible evidence or by considering any inadmissible evidence. The finding of fact arrived at by the learned first appellate court cannot be termed as outrageously defying any logic incurring the blame of being perverse.

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