Dismissed

Raj Kishor Singh v. Sita Ram Singh and Ors.

Patna HC6 Dec 2012SA/551/2009

Case brief

AI extract

What is this about?

The Patna High Court dismissed a second appeal seeking to set aside findings of pre-existing partition between brothers. The court held that separate living, mutual transactions, and independent dealings established partition as a question of fact, not disturbing on substantial question of law grounds.

What did the court decide?

The second appeal was dismissed at the admission stage for lack of substantial question of law.

Raj Kishor Singh Vs Sita Ram Singh and Ors. — Partition | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.551 of 2009 ====================================================== Raj Kishor Singh .... .... Appellant Versus Sita Ram Singh & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. R.K.Sinha-2 Mr. Kamal Kishor Singh For the Respondent/s : Mr.

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====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 9 06-12-2012 1. Heard the learned counsel for the appellant under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiff-appellant appellant has filed this second appeal against the Judgment and Decree dated 16.9.2009 passed by the learned District Judge, Sitamarhi in partition appeal No.70 of 2007 whereby the lower appellate Court dismissed the appeal and thereby confirmed the Judgment and Decree of the trial Court dated 24.9.2007 passed by the learned Munsif Sadar, Sitamarhi in partition suit No.9 of 2001. 3. The plaintiff-appellant appellant filed the aforesaid partition suit alleging that Babulal Singh had 4 sons who came in

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possession of the property of Babulal on his death. Babulal Singh had 4 sons namely, Hargen Singh, Fulgen Singh, Banke Singh and Jitu Singh. Out of 4 sons, Banke Singh and Fulgen Singh died issueless in the jointness. Jitu Singh also died in jointness with his brothers leaving behind his wife and sons who are the plaintiffs who inherited the share of Jitu Singh in the property mentioned in Schedule I of the plaint. The further allegation of the plaintiff is that during the revisional survey operation, the joint family property was recorded in the name of Ram Kishun Singh and Jitu Singh. The parties have already partitioned the residential house. The dispute is only with respect to Schedule I property wherein the plaintiffs have got half share.

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4. The defendant No.1 filed contesting written statement alleging that there had already been partition between the parties, i.e, the 4 sons of Babulal in the year 1938. Banke Singh gifted his entire property to Ram Kishun Singh by registered gift deed dated 3.8.1944. There are intersee transaction also. Ram Kishun Singh purchased the property by registered sale deeds measuring 20 decimal only. Therefore, 20 decimal land is the self-acquired property of the branch of defendant whereas 8 decimal land was allotted to them in the partition.

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5. The trial Court after considering the evidences and material available on record dismissed the plaintiff’s suit recording the finding that there had already been partition between the parties. The plaintiff then filed appeal before the lower appellate Court. The lower appellate Court also recorded the finding that

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there had been partition between the parties, and, therefore, the appeal was dismissed.

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6. The learned counsel, Mr. Ashok Kumar, appearing on behalf of the appellant submitted that while dismissing the appeal the lower appellate Court has misconstrued ext.3, the compromise application wherein the defendant No.2 who is brother of defendant No.1 categorically admitted that the plaintiffs have got share in the suit property and the defendant No.2 is the own brother of defendant No.1. Therefore, the lower appellate Court instead of recording finding that the plaintiffs have got share in the suit property disbelieved the plaintiff’s case. The learned counsel further submitted that in the plaint, it has specifically been mentioned by the plaintiff that so far homestead land is concerned, the same has only been partitioned and not the agricultural land but the lower appellate Court observed in the Judgment that the plaintiff pleaded that there had already been partition between the parties with respect to the homestead land as well as agricultural land which vitiated the Judgment. According to the learned counsel, the lower appellate Court also wrongly mentioned that after the death of defendant No.2, his legal representative did not accept the compromise although in fact they filed an application accepting the compromise ext.3 wherein their ancestor defendant No.2 had admitted that plaintiffs have half share in the suit property. They also stated that if partition is affected, they have got no objection.

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7. In this case, it is admitted fact that out of suit property,

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20 decimal land has been purchased by the registered sale deed ext. ‘B’ series which are standing in the name of RamKishun Singh. So far the remaining 8 decimal is concerned, it is the case of the defendant No.1 that it was allotted in their share in partition. From perusal of the trial Court Judgment as well as the appellate Court Judgment, it appears that the ancestor of the plaintiffs executed several sale deeds with respect to the family property in favour of the defendant also. Therefore, it is admitted fact that there was intersee transaction between the parties.

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8. In the case of Ram Bahadur Nath Tiwary Vs. Kedar Nath Tiwary A.I.R. 1977 Patna 59, a Division Bench of this Court has held that separate transaction by members of a joint family may not by themselves establish separation but mutual transaction between two members of a family stand on an entirely different footing and they furnish a very strong evidence of separation. In this present case, it is admitted that there is mutual intersee transaction between the parties. It further appears that they are living separately since long. Their mess is separate, the residence is separate and they are dealing with the properties independently. The father of the plaintiff sold some properties and the defendant also sold some of the properties and the property in suit have been acquired by ext. B series. According to the defendant No.1, there had already been partition in the year 1938 between the 4 brothers. In the present case, it is the case of the plaintiff that there had already been partition of some of the joint family property. Now, therefore, there is no presumption that the

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family remain joint with respect to other property also. In such circumstances, the onus is on the plaintiff to prove that the suit property remained joint.

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9. In the case of Bhagwan Dayal Vs. Reoti Devi A.I.R. 1962 SC 287, the Apex Court has held that in a case of old transaction when no contemporaneous documents are maintained and when most of the participant in the transaction have passed away though the burden still remained on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by inferences then in a case where the evidence is not obliterated by passage of time. In the present case, admittedly, no document has been produced by the defendant to show that partition took place in the year 1938 but the circumstances that the parties are living separately, messing separately, dealing the property separately and even there is mutual transaction between the parties cumulatively if taken into account, it leads to only conclusion that there had already been partition between the parties.

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10. In the case of Arjun Mahto Vs. Munda Mahatain A.I.R. 1971 Patna 215, a Division Bench of this Court has held that although separate mess, separate residence separate cultivation and separate transaction of properties by themselves may not be conclusive proof of partition but taking into consideration the cumulative effect thereof, the same lead to inferences of partition. This Division bench of the High Court has been subsequently followed in various decisions such as in the case

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Ganesh Sahu Vs. Dwarika Sao A.I.R. 1991 Patna 1, page 95 and page 276.

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11. Further the finding of partition between the parties is a pure question of fact. So far the submission of the learned counsel for the appellant that the defendant No.2 admitted that the plaintiff have got half share in the suit property is concerned, it may be mentioned here that the case of the defendant No.1 is entirely different. According to him, the 20 decimal was purchased by them exclusively, therefore, that 20 decimal purchased by them is self acquired property. In such circumstances, any statement made by any other person who has got conflict interest with Ram Kishun Singh cannot be read against him. It may be mentioned here that in ext.3, Ram Kishun has not signed and the compromise was not entered into between the plaintiff and Ram Kishun Singh. Therefore, since he is not a party to this ext.3, it will not be binding on the purchaser of the property. So far the submission of the learned counsel that the legal representatives also admitted the compromise by filing application but the lower appellate Court has wrongly mentioned that they did not accept the same is concerned, it may be mentioned here that the admission made by third person will not be admissible against the real purchaser, if the property is self acquired property. Admittedly the title deed is in the name of Ram Kishun Singh, one of the brother of defendant No.1, unless it is proved that the same property is joint family property, the statement of the legal representative also will not bind the defendant No.1 or Ram Kishun Singh. So far the

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submission of the learned counsel for the appellant that the heirs of Ram Kishun have not contested the suit is concerned, in my opinion only because they have not contested the suit, the plaintiff will not acquire any interest in the property unless, they prove that it is the joint family property and they have got unity of title and possession. So far unity of title and possession are concerned, both the Courts below concurrently recorded the finding that there had already been partition between the parties. Therefore, in my opinion, this being the pure question of fact, it cannot be interfered with in second appellate jurisdiction.

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12. Thus, I find no substantial question of law is involved in this second appeal and accordingly, this second appeal is dismissed at the admission stage itself.

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Sanjeev/-

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(Mungeshwar Sahoo, J)

Raj Kishor Singh v. Sita Ram Singh and Ors.

Case brief

What is this about?

What did the court decide?

Raj Kishor Singh v. Sita Ram Singh and Ors.

Case brief

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What did the court decide?

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