Dismissed

Shiv Nath Yadav and Anr. v. Smt. Mahamahti Devi and Ors.

Patna HC24 Sept 2013SA/100/2012

Case brief

AI extract

What is this about?

The High Court of Judicature at Patna dismissed a title appeal challenging a judgment declaring the plaintiffs' title to suit land via a family settlement partition in 1978, rejecting the appellant's claim that a prior partition included the disputed property.

What did the court decide?

The appeal was dismissed without order as to costs, affirming the lower court's decree in favor of the plaintiffs.

Shiv Nath Yadav and Anr. Vs Smt. Mahamahti Devi and Ors. — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.100 of 2012

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======================================================

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Shiv Nath Yadav S/O Late Sabbir Yadav R/O Moh-Kumhrar Lohiyanagar, P.S.Sultanganj, At Present Agamkuan, Distt-Patna

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Baijnath Yadav @ Baiju Yadav S/O Late Sabbir Yadav R/O MohKumhrar Lohiyanagar, P.S. Sultanganj, at Present Agamkuan, DisttPatna .... .... Appellant/s

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Versus

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Smt. Mahamahti Devi W/O Sri R.K.Sharma & D/O Late Kamal Singh R/O Moh-Kazipur, P.S. Kadamkuan, P.O.Kadamkuan, DisttPatna

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Sri Kumar Makrand S/O Sri Sachidanand Sinha R/O Moh-Kazipur, P.S. Kadamkuan, P.O.Kadamkuan, Distt-Patna

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Most. Urmila Singh W/O Late Sudarsan Prasad Singh R/O VillKoeri, P.S.Khejarsarai, Distt-Gaya, At Present M.I.G.H.-215, Kankarbagh Colony, P.S. Kankarbagh, Distt-Patna

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Manish Kumar S/O Late Saudaghar Pd. Singh R/O Vill-Koeri, P.S.Khejarsarai, Distt-Gaya, At Present M.I.G.H.-215, Kankarbagh Colony, P.S. Kankarbagh, Distt-Patna

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Mini Singh D/O Late Sudarshan Pd. Singh R/O Vill-Koeri, P.S.Khejarsarai, Distt-Gaya, At Present M.I.G.H.-215, Kankarbagh Colony, P.S. Kankarbagh, Distt-Patna

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Kriti Singh D/O Late Sudarshan Pd. Singh R/O Vill-Koeri, P.S.Khejarsarai, Distt-Gaya, At Present M.I.G.H.-215, Kankarbagh Colony, P.S. Kankarbagh, Distt-Patna

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Sudarshan Pd. Singh S/O Sri Haridwar Singh R/O Vill-Koeri, P.S.Khejarsarai, Distt-Gaya, At Present M.I.G.H.-215, Kankarbagh Colony, P.S. Kankarbagh, Distt-Patna

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Smt. Krishna Devi W/O Sri Parasnath Yadav R/O Moh-Alamganj Chouki, P.S.Alamganj, P.O.Gulzarbagh, Distt-Patna

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Ram Lakhan Yadav S/O Late Sugambar Yadav R/O Moh-Kumhrar, P.S.Sultanganj, Now Agamkuan, P.O.Lohiyanagar, Distt-Patna

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Gulab Devi Widow Of Late Sunil Yadav R/O Moh-Kumhrar, P.S.Sultanganj, Now Agamkuan, Distt-Patna

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Ritesh Kumar Minor Son Of Late Sunil Kumar Under The Guardianship Of Their Mother Gulab Devi R/O Moh-Kumhrar, P.S.Sultanganj, Now Agamkuan, Distt-Patna

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Munna Minor Son Of Late Sunil Kumar Under The Guardianship Of Their Mother Gulab Devi R/O Moh-Kumhrar, P.S.Sultanganj, Now Agamkuan, Distt-Patna

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Miss Dolly Kumari Minor Daughter Of Late Sunil Kumar Under The Guardianship Of Her Mother Gulab Devi R/O Moh-Kumhrar, P.S.Sultanganj, Now Agamkuan, Distt-Patna

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Anil Yadav S/O Ram Lakhan Yadav R/O Moh-Kumhrar, P.S.Sultanganj, Now Agamkuan, Distt-Patna

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The Indian Institute Of Electronics Through Professor Dr. Nand Kishore Prasad, Director Having Its Office At Punaichak, P.S.Gardanibagh, Distt-Patna

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Sri Nand Kishore Prasad S/O Sri Janki Prasad Director Indian

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Patna High Court SA No.100 of 2012 (10) dt.24-09-2013

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Institute Of Electronics, R/O Moh-Mohthadih, P.S.Birai, DisttGiridih At Present Residing At Mohalla-Kankarbagh Colony, Quarter No.A/13, Agamkuan, Distt-Patna

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Harshit Prasad Singh S/O Udit Narayan Singh R/O Vill-Charon, P.S.Sarmera, Distt-Nalanda , At Present Mohalla-Kadamkuan, P.S. & P.O.-Kadamkuan, Distt-Patna

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Patna Institute Of Technology Kadamkuan , Patna Through Its Registrar, Mohalla -Kadamkuan, P.O.& P.S.Kadamkuan, Distt-Patna

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Syed Neyaz Hasan Kajmi S/O Late Reyazul Hassan Kajmi R/O Wakf House, Gulzarbagh, P.S.Alamganj, Distt-Patna

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Most. Sona Devi W/O Late Bhagwan Das 21. Ranjeet Mahto S/O Late Bhargan Das@ Bhagwan Das R/O - Mogalpura, P.S.Khajekalan, Distt-Patna

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Shankar Mahto S/O Late Bhargan Das@ Bhagwan Das R/O - Mogalpura, P.S.Khajekalan, Distt-Patna

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Bachchi Devi W/O Late Raghunath Pd. Singh 24. Pushpanjay Kumar Sharma S/O Raghunath Pd. Sharma R/O VillChero, P.S.Sarmera, Distt-Nalanda At Present Resident Of Rajendranagar, Road No.11. , P.S.Kadamkuan, Distt-Patna

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Printunjay Kumar Sharma S/O Raghunath Pd. Sharma R/O VillChero, P.S.Sarmera, Distt-Nalanda At Present Resident Of Rajendranagar, Road No.11. , P.S. Kadamkuan, Distt-Patna

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.... .... Respondent/s ====================================================== Appearance:

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For the Appellant/s : Mr. Sukumar Sinha, Sr. Advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN C.A.V.ORDER

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10. 24-09-2013 This appeal is directed against the judgment and decree dated 19.12.2011 passed by the Additional District and Sessions Judge-II, Patna City, District-Patna in Title Appeal No. 78 of 2007 dismissing the appeal and affirming the judgment and decree dated 24.3.2007 passed by the Civil Judge-II (Senior Division), Patna City, Patna in Title Suit No. 18 of 1980, whereby the suit was decreed in favour of the plaintiff.

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For the sake of convenience I shall be referring to the status

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Patna High Court SA No.100 of 2012 (10) dt.24-09-2013

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of the parties as occurring before the trial court.

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The suit in question bearing Title Suit No. 18 of 1980 was filed by the plaintiffs for declaration of their title over Schedule-1 land and non title of the defendants and alternatively a prayer had been made that if the court is unable to uphold the partition as mentioned in the plaint then a decree of partition to the extent of half share of the plaintiff no. 4 in the property fully described in schedule-4 to the plaint, be passed and the purchasers from the plaintiff no. 4 who are plaintiff nos. 1 to 3, be adjusted against the share of plaintiff no. 4.

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The suit property is described in schedule-1 of the plaint. The land purchased by the plaintiff no. 3 from plaintiff no. 4 is described in schedule-2 of the plaint, the land purchased by plaintiff nos. 1 and 2 from the plaintiff no. 4 is described in schedule-3 of the plaint and the entire area of plot no. 2199, 2201 and 2202 is described in Schedule 4.

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It is the case of the plaintiffs that one Punai Yadav was a common ancestor of the plaintiff no. 4 and the defendant first party, who owned and possessed several landed properties including the suit area of 1.65 acres of land appertaining to survey plot no. 2199, 2201 and 2202 of khata no. 842 situated at MaujaSandalpur, Kumhrar, District-Patna. The name of Punai Yadav is

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recorded in the survey records of right as an occupancy raiyat. It is stated that the said Punai Yadav was survived by three sons, namely Munna Yadav, Munni Yadav and Sugambar Yadav. Punai Yadav and Munna Yadav died within a short duration leaving the other surviving sons namely, Munni Yadav and Sugambar Yadav in a state of jointness. It is further the case of the plaintiffs that the joint properties left behind by Punai Yadav was partitioned between the two brothers, namely, Munni Yadav and Sugambar Yadav except the suit property which was in the nature of an orchard and was left out for joint enjoyment by the family as several fruit trees existed on the said property. It is the case of the plaintiffs that Sugambar Yadav died leaving behind two sons, namely, Sabbir Yadav and Ram Lakhan Yadav. Sabbir Yadav died leaving behind his widow Pachhiya Devi and two sons, namely, Shiv Nath Yadav and Raj Nath Yadav who are defendant nos. 4 to 6 in the suit. It is the case of the plaintiffs that the other son of Punai Yadav, namely, Munni Yadav also had a son by the name of Chamaru Yadav who had pre-deceased his father in the year 1943-44 leaving behind his widow Dukhani Kuar and daughter Krishna Devi. Munni Yadav had executed a registered deed of gift dated 01.04.1954 in respect of some of the land allotted to him on partition, in favour of his daughter-in-law,

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namely, Dukhani Kuar who also was put in possession over the property. Munni Yadav also died leaving behind his daughter-inlaw Dukhani Kuer and grand daughter Krishna Devi who is wife of Paras Nath Yadav. Dukhani Kuer died in the year 1970 leaving behind her daughter Krishna Devi. It is further the case of the plaintiffs that a private family partition took place in respect of the suit property described in schedule-4 of the plaint in between Krishna Devi and the defendant first party on 7.3.1978 and in which the plaintiff no. 4 Krishna Devi was allotted half of the suit area towards the east in survey plot no. 2199, 2201 and 2202 whereas the western half of the area forming the suit land was allotted to the defendant first party. It is the case of the plaintiff that after partition took place the plaintiff no. 4 Krishna Devi sold three kathas of land in survey plot no. 2201 and 2202 to the plaintiff no. 3 Sudarshan Prasad Singh by a registered deed of sale dated 26.8.1978 for a sum of Rs. 21,000/- and described in schedule-2 of the plaint. It is the case of the plaintiff that prior to the sale made in favour of Sudarshan Prasad Singh, the defendant no. 4 Pachhiya Devi sold a portion of land towards west of the allotted land to one Ram Swaroop Yadav on 6.4.1978. It is further the case of the plaintiff that on 31.8.1978 Krishna Devi also sold three kathas of land in plot no. 2199 and 2201 to the plaintiff nos.

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1 and 2 by two registered sale deeds dated 31.8.1978 for a consideration of Rs. 18,000/- towards east and south of the land purchased by Sudarshan Prasad Singh, the plaintiff no. 3 and consequent there upon the plaintiff nos. 1 and 2 came in possession over their purchased land and also put a hutment thereon. It is stated by the plaintiffs that after gathering knowledge of the purchase made by the plaintiff nos. 1 to 3 from the plaintiff no. 4, the defendant first party Ram Lakhan Yadav out of greed and dishonesty executed a sale deed on 13.09.1979 in respect of 7 kathas of land and in a similar manner Pachhiya Devi, the defendant no. 4 also executed another sale deed on 10.12.1979 in favour of defendant no. 7 in respect of 7 ½ kathas of land in plot nos. 2199, 2201 and 2202. It is the case of the plaintiffs that following the purchase the defendants arrived with deadly weapons to dispossess the plaintiffs but due to timely arrival of the police on the spot the evil design of the defendants was prevented and the police had recommended initiation of proceedings under Section 144 of the Code of Criminal Procedure which was followed by an order of attachment under Section 146 of the Cr.P.C. dated 3.1.1980 passed by S.D.M. Patna City. The suit was filed in the said circumstances and was valued at Rs. 1,29,000/for the purpose of jurisdiction and over which the plaintiffs claim

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to have deposited court fee for the declaratory relief as well as the alternative relief as also for the injunction prayed.

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Records manifest that though there were different set of defendants who also filed their written statement but except the defendant nos. 5 and 6 who are the appellants before this Court and are sons of defendant no. 4 Pachhiya Devi and Sabbir Yadav the son of Sugambar Yadav, the others left the contest. Despite service of notice the defendant nos. 1 to 3 i.e. Ram Lakhan Yadav, his widowed daughter-in-law Gulab Devi and his son Anil Yadav did not choose to appear nor contested the suit. Pachhiya Devi widow of Sabbir Yadav who also deceased during the pendency of the litigation, had contested the suits alongwith her sons Shiv Nath Yadav and Baijnath Yadav.

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The contesting defendants while questioning the genealogy given by the plaintiff submitted that Sugambar Yadav also had a son by the name of Parmeshwar Yadav but he had died unmarried. According to the defendants there was a partition between the surviving sons of Punai Yadav, namely, Munni Yadav and Sugambar Yadav in respect of the entire joint family property including the suit property comprising of the lands bearing khata no. 842, survey plot nos. 2199, 2201 and 2202 which according to the contesting defendants had been allotted to the branch of

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Sugambar Yadav alongwith other lands. According to the defendants Munni Yadav was allotted land of Chainpur, Kumhrar in khata no. 1008 and 1009 bearing plot no. 2171 admeasuring 22 ½ decimals and plot no. 2170 admeasuring 12½ decimals. According to the defendants the wife of Sugambar Yadav died in 1950 and soon thereafter Sugambar Yadav also died and whereafter Sabbir Yadav and Ram Lakhan Yadav their sons came in joint possession of the estate of Sugambar Yadav and started paying rent thereof. It is stated by the defendants that the exlandlord filed Jamabandi returns in the name of Sabbir Yadav and after vesting of the State, the name of Sabbir Yadav was entered in the Register-2. According to the defendants 14 decimals of land in plot no. 2202 and 1 decimal of land of plot no. 2201 was acquired by the State Government under the Ganga Bridge Scheme and the award was prepared in the name of Sabbir Gope. It is stated that the husband of Krishna Devi, the plaintiff no. 3 namely, Paras Nath developed greedy eye for the said land who got the karamchari in collusion and got rent fixed in the name of Pachhiya Devi, Ram Lakhan Yadav and Krishna Devi for the lands of khata no. 842. It is stated that Paras Nath also filed a forged petition before the Land Acquisition Officer about which the defendant no. 4 had no knowledge. The defendant no. 4

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Pachhiya Devi and Ram Lakhan Yadav had no knowledge about the forgery since he was posted at Assam and thus Paras Nath taking Pachhiya Devi in confidence withdrew the compensation amount. Three sale deeds were executed by the defendants. Pachhiya Devi sold a portion of the suit property to Ram Swaroop Yadav on 6.4.1978, 7½ kathas was sold to defendant no. 7 the Indian Institute of Electronics on 10.12.1979 and the defendant no. 1 Ram Lakhan Yadav also sold 7 kathas of land to the Indian Institute of Electronics on 13.9.1979.

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On the basis of the pleadings of the parties, the trial court framed 8 issues and decided all the issues in favour of the plaintiff and against the defendants by judgment and decree dated 24.3.2007. Being aggrieved defendant nos. 5 and 6 preferred Title Appeal No. 78 of 2007 and which was dismissed by judgment and decree dated 19.12.2011 and hence this appeal.

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Whereas according to the plaintiffs a partition of the joint family property had already taken place between the surviving sons of Punai Yadav namely, Munni Yadav and Sugambar Yadav except the suit property which was in the nature of an orchard and that a second partition took place on 7.3.1978 by way of a family settlement whereunder the plaintiff no. 4 was allotted half of the suit property towards the eastern side whereas the half area

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towards the West was allotted to the principal defendant first set but the stand of the plaintiff has been contested by the defendants on grounds that the entire properties of Punai Yadav had been partitioned between his surviving sons including the suit property.

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Mr. Sukumar Sinha, learned Senior Counsel has appeared on behalf of the appellant. Mr. Sinha while referring to the substantial questions of law framed in the memo of appeal, has primarily argued on the following issues:

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(a) The suit was under valued;

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(b) In absence of consequential relief prayed by the plaintiff in respect of the sale deeds executed by the defendant no. 1 and 4, the suit was barred under Section 34 of the Specific Relief Act;

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(d) In absence of any prayer made by the plaintiff questioning the validity of the sale deeds executed by the defendant no. 1 Ram Lakhan Yadav and defendant no. 4 Pachhiya Devi in favour of the defendant no. 7 i.e. the Indian Institute of Electronics, no finding as to its invalidity should have been recorded by the court(s) below.

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Mr. Sinha while appreciating that a judgment and decree

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on concurrent finding of facts by the court(s) below can only be assailed on grounds of perversity, has submitted that despite the

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legal position having been settled by a full bench of this Court in the case of Mostt. Rupiya reported in AIR 1944 Patna 17, the court(s) below have failed to appreciate that the plaintiff by a clever drafting has tried to avoid payment of ad valorem court fee by merely designing his suit to appear as a declaratory suit. He submits that the courts have failed to exercise their jurisdiction in appreciating the substance of the relief prayed and though the suit was framed as a declaratory suit but in substance it aimed at setting aside the sale deeds executed by the defendant nos. 1 and 4 and thus the plaintiff was liable for payment of ad valorem court fee. He further submits that the failure of the plaintiff to remove this defect and in absence of any consequential relief prayed in relation to the sale deeds executed by the defendant nos. 1 and 4, the suit is hit by the provisions of Section 34 of the Specific Relief Act. Mr. Sinha also tried to question the findings of the courts below on the issue of partition to submit that there is a contradiction in the findings of the court below on this aspect. Mr. Sinha in support of his submission has referred to the finding of the appellate court in respect of issue no. 5 present at paragraph-17 of the appellate court judgment which is relatable to the suit valuation to submit that the judgment relied upon by the appellate court to uphold the contention of the plaintiffs do not

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strictly apply to the present case. According to Mr. Sinha the suit was under valued by seeking a declaratory relief when it fact the substance of the relief was directed towards nullifying the effect of the sale deeds executed by the defendant no. 1 Ram Lakhan Yadav and defendant no. 4 Pachhiya Devi in favour of the defendant no. 7. Mr. Sinha sought to argue that the plaintiff by seeking only a declaratory relief in order to avoid payment of ad valorem court fee has sailed within the mischief of Section 34 of the Specific Relief Act and which itself is sufficient for dismissal of the suit. It was further submitted that in absence of any challenge to the sale deeds executed by the defendant nos. 1 and 4, the court(s) below have travelled beyond their jurisdiction, in recording a finding in respect of the said sale deeds.

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The issue thus posed before this Court is whether the findings of the court below: (a) on the issue of the court fee; (b) on the issue of the suit being hit by Section 34 of the Specific Relief Act in absence of any challenge to the sale deeds executed by the defendant nos. 1 and 4 in favour of defendant no. 7; (c) on the issue of partition; and (d) on the issue of consequential relief, are such that it warrants a consideration by this Court under Section 100 of the Code of Civil Procedure.

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I have heard Mr. Sinha, learned Senior Counsel for the

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appellant and have perused the judgment and decree passed by the court below. Although about 15 substantial questions of law have been raised in the memo of appeal but a cursory glance over the questions of law manifests that they all are revolving around the issues broadly outlined hereinabove. The thrust of argument of Mr. Sinha has been on the issue of non payment of the ad valorem court fee by the plaintiff as according to Mr. Sinha although the plaintiff by a clever drafting has sought for a declaratory relief to avoid payment of appropriate court fee but in substance the suit seeks to question the sale deeds executed by the defendant no. 1 and 4. It has further been the contention of Mr. Sinha that in absence of any consequential relief prayed by the plaintiff questioning the sale deeds executed by the defendants, the suit is also hit by Section 34 of the Specific Relief Act. The last of the contentions of Mr. Sinha has been that the finding of the court below on the issue of partition is perverse and that in absence of challenge, the court below should not have expressed any finding as to the sale deeds executed by the defendant nos. 1 and 4.

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I shall be dealing with each of the issues one by one. Since the issue of payment of ad valorem court fee and the suit being hit by the provisions of Section 34 of the Specific Relief Act are

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interlinked, I shall consider the said issues alongside. Perusal of the records manifests that the plaintiffs had primarily sought for a declaration of their title over schedule-1 property and the non title of the defendants over the same. Alternatively it was prayed by the plaintiff that the suit property as described in schedule-4 be partitioned between the plaintiff no. 4 and the defendants in half and the purchasers from plaintiff no. 4 who are plaintiff nos. 1 to 3, be adjusted against the share partitioned in favour of the plaintiff no. 4. The property purchased by the plaintiff no. 1 from plaintiff no. 3 is fully described in schedule-2 while the property purchased by plaintiff nos. 1 and 2 from plaintiff no. 4 is described in schedule-3 to the plaint. It is thus manifest from the reliefs prayed that they are declaratory in nature and the plaintiff has paid court fee in relation thereto and has also paid the fixed court fee for partition. There is no dispute on this finding of fact. Although 13 witnesses were led by the plaintiffs in support of their claim alongwith 13 documentary evidence, the defendants also led 18 witnesses but insofar as the documentary evidence is concerned except for filing some receipts marked as Exhibit-A series , the sale deed executed by defendant no. 4 Pachhiya Devi in favour of the defendant no. 7 on 23.1.1979 was led as ExhibitB, no other supporting evidences were led by the defendants.

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The argument of Mr. Sinha that the plaintiff by a clever drafting, have succeeded to avoid payment of appropriate court fee, does not persuade this Court to accept the contentions on sole ground that if the plaintiff succeeds in obtaining the declaratory relief regarding their title over the suit property and non-title of the defendants first set over the same, there would be no occasion for them to seek a consequential relief since the sale deeds executed by defendant nos. 1 and 4 would become a nullity on grounds of having been executed by persons having no title to the property. For the reasons aforementioned, neither the judgment and decree of the court below suffers infirmity on the issue of court fee nor on the issue of Section 34 of the Specific Relief Act. The full bench judgment rendered in the case of Mostt. Rupiya (supra) relied upon by Mr. Sinha to establish that the plaintiffs are not entitled to any relief, would not apply to the facts of the present case inasmuch as whereas in the case of Mostt. Rupiya (supra), the vendors had title to the property executed under the sale deed and which required a specific relief for setting it aside but in the present case since the plaintiffs claim title over the suit property by virtue of partition by way of family settlement which is stated to have taken place on 7.3.1978 and non title of the defendants, the moment the court would decree the suit in favour

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of the plaintiffs and declare the non-title of the defendant over the suit property, the sale deeds executed by the defendant nos. 1 and 4 ipso facto would become a nullity and a void document.

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My findings aforementioned are also an answer to the issue raised by Mr. Sinha regarding no consequential relief being prayed by the plaintiff for declaring the sale deed executed by the defendant nos. 1 and 4 as null and void. That would bring this Court to the last issue raised by Mr. Sinha regarding contradiction in the findings of the court(s) below on the issue of partition. In the opinion of this Court there is no contradiction in the findings of the court below rather the fact of partition is admitted by the parties to the suit with the only difference that whereas according to the plaintiffs the suit property stood excluded from the said partition but according to the defendant first set, the partition was inclusive of the suit property also. Thus the factum of previous partition is admitted by the parties. The gift deed executed by Munni Yadav in favour of his daughter-in-law, namely, Dukhni Kuer, the mother of the plaintiff no. 4 on 1.4.1954 in respect to the portion of the land allotted to him is an evidence of previous partition. The dispute is whether the suit property was part of the previous partition. It is thus to be seen whether the statement made by the plaintiff no. 4 regarding the second partition by way

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of family arrangement taking place on 7.3.1978, is supported by the evidence led by them and whether the findings of the courts below are based on such evidence or suffers from perversity.

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Whereas the defendant nos. 1 to 3 which includes the 2^nd son of Sugambar Yadav namely Ram Lakhan Yadav, did not choose to contest the suit despite executing sale deeds, it is the case of the contesting defendants that the suit land had also been partitioned and in which process plot no. 2171 having an area of 22½ decimals and plot no. 2170 having an area of 12½ decimals were allotted to Munni Yadav in lieu of the suit property, but the said statement of the defendants first set is not acceptable for more than one reasons namely:

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(a) The area of the plot nos. 2171 and 2170 stated to have been allotted to Munni Yadav, the ancestor of the plaintiff no. 4, in lieu of the suit property which was given in the share of Sugambar Yadav comes to a meager 35 decimals as against the suit area of 1.65 acres;

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(b) Whereas the defendant no. 5 Shiv Nath Yadav who has deposed as D.W. 2 has stated about the entire area of 70 decimals in plot no. 2171 being allotted to Munni Yadav, the gift deed dated 1.4.1954 executed by Munni Yadav in favour of his daughter in law Dukhni Kuer is for an area of 22½ decimals out of 35 decimals in plot no. 2171 and mentions the name of Sabbir Gope, the

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father of defendant no. 5 and 6 namely Shiv Nath Yadav and Baijnath Yadav, on the eastern boundary. The said fact is sufficient to prove that Munni Yadav and his brother were allotted 35 decimals each in plot no. 2171 and thus the story that the suit property had been given to Sugambar Yadav the ancestor of the defendants in lieu of plot no. 2171 and 2170 stands falsified;

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(c) The case of the plaintiff that a family partition of the suit lands took place on 7.3.1978 in between the plaintiff no. 4 Krishna Devi, the defendant no. 4 Pachchia Devi and the defendant no. 1 Ram Lakhan Yadav by way of private partition and plaintiff no. 4, Krishna Devi was allotted half share towards the east and Mostt. Pachchia Devi and Ram Lakhan Yadav were allotted half towards west and the said partition was acted upon, is supported by the following documents:-

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(i) Sale deed dated 6.4.1978 executed by defendant no. 4 Pachchia Devi in favour of Ram Swaroop Yadav towards west of her allotted land.

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(ii) On 26.8.1978, plaintiff no. 4 sold three kathas of land in the suit property towards the eastern side in favour of the plaintiff no. 3 Sudarshan Prasad Singh.

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(iii) On 31.8.1978 plaintiff no. 4 Krishna Devi further sold three kathas of land towards the east of the plot in favour of plaintiff nos. 1 and 2 which falls towards east and south of the land purchased by Sudarshan Prasad Singh.

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(iv) After the sale aforementioned, Ram Lakhan Yadav the defendant no. 1 executed a sale deed on 13.09.1979 in

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respect of 7 kathas of land and in a similar manner defendant no. 4 also executed sale deed on 10.12.1979 in favour of defendant no. 8 in respect of seven and half kathas of land. The two deeds covering the lands purchased by plaintiff nos. 1 to 3 as well as the remaining land of Krishna Devi.

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Exhibit-B which is the sale deed dated 23.2.1979 executed by defendant no. 4 Pachchia Devi, defendant no. 5 Shiv Nath and defendant no. 6 Baijnath in respect of three kathas of land in plot no. 2202 towards west mentions the statement of the defendant that the land is out of their share towards west which they got on partition from their ‘Farikain’.

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(v)

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(vi) None of the purchasers from defendant 1 and 4 joined the contest. Neither the defendant no. 7 the Indian Institute of Electronics nor the defendant no. 8 Nand Kishore Prasad or the Patna Institute of Technology did appear to contest the suit. None of the sale deeds executed by the defendant were led by them as exhibits except one dated 23.2.1979.

¶116

(vii) Exhibit-10 which is a certified copy of khatiyan in respect of plot no. 2199, 2201 and 2202 of khata no. 842 which is the suit property, is in the name of Punai Yadav. Exhibit-10A which again is a certified copy of khatiyan and shows that Plot No. 2170 is in the name of one Paltu Mahto and not Punai Yadav and measures an area of 7 decimals and not 12½ decimals as stated by defenants. Plot No. 2171 is in name of Punai Yadav and measures 70 decimals.

¶117

Patna High Court SA No.100 of 2012 (10) dt.24-09-2013

¶118

¶119

(viii) Exhibit-7 which is a certified copy of joint application by plaintiff no. 4 Krishna Devi, defendant no. 4 Pachchia Devi and defendant no. 1 Ram Lakhan Yadav for fixation of rent of the suit property.

¶120

(ix)
(x)

¶121

(ix) Exhibit-8 which is a certified copy of the Karamchari report dated 20.12.1974 proving joint possession of the parties over the disputed land.

¶122

(x) Exhibit-13B certified copy of the order passed in Misc. Case No. 78/73-74 relating to rent fixation of the disputed land in name of plaintiff no. 4, defendant nos. 1 and 4 jointly.

¶123

(xi) Exhibit-13/13C was certified copy of the order sheet of Circle Officer dated 15.1.1975 containing a joint objection of plaintiff no. 4, defendant nos. 1 and 4.

¶124

(xii) Exhibit-3 and 3A, two original pattas dated 18.4.1977 jointly executed by plaintiff no. 4 and defendant no. 4.

¶125

The evidence led by the parties as finds mention in the judgment of the Court(s) below and some of which have been also taken note of by me hereinabove, are sufficient to prove that although a partition had taken place at least prior to 1.4.1954 but so far as the suit property is concerned, no partition took place since the documents demonstrate that a jointness prevailed thereon and until the execution of the sale deed by the defendant no. 4 on 6.4.1978.

¶126

The circumstances are sufficient to uphold the contentions

¶127

Patna High Court SA No.100 of 2012 (10) dt.24-09-2013

¶128

¶129

of the plaintiff regarding partition by way of family arrangement on 7.3.1978 since prior thereto no sale of the suit property took place but soon thereafter the parties have acted in the light of the arrangement and the defendant no. 4 executed a sale deed towards west of the plot in terms of the arrangement in favour of Ram Swaroop Yadav and again on 23.2.1979, she alongwith her sons, who are appellants before this Court, executed another sale deed (Ext-B) which further conforms this position.

¶130

For the reasons discussed hereinabove, I am not persuaded to interfere with the concurrent findings of the court(s) below on issues of facts and law and this appeal failing to raise any substantial question of law is dismissed accordingly but without order as to costs.

¶131

(Jyoti Saran, J)

¶132

S.Sb/-

Shiv Nath Yadav and Anr. v. Smt. Mahamahti Devi and Ors.

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