The Patna High Court dismissed a second appeal challenging the dismissal of a title suit for partition. The Court held that the plaintiffs had admitted a prior partition of the jointly purchased land, rendering a second suit impermissible, and affirmed the lower courts' finding that the defendants' survey entry was correct.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.112 of 2012
====================================================== 1. Md. Kaiyum S/O Late Amanat R/O Vill-Paina, P.S.Chousa, DisttMadhepura .... .... Appellant/s Versus 1. Jahruddin S/O Late Fakruddin R/O Vill-Paina, P.S.Chousa, DisttMadhepura 2. Md. Rais S/O Late Fakruddin R/O Vill-Paina, P.S.Chousa, DisttMadhepura 3. Bibi Kulsum D/O Late Fakruddin R/O Vill-Paina, P.S.Chousa, DisttMadhepura 4. Bibi Sanjita W/O Late Mahruddin R/O Vill-Paina, P.S.Chousa, DisttMadhepura 5. Md. Kasim Mian S/O Late Mahruddin, Under The Guardianship Of Their Mother , Bibi Sanjita R/O Vill-Paina, P.S.Chousa, Distt-Madhepura 6. Md. Tausi Mian S/O Late Mahruddin, Under The Guardianship Of Their Mother , Bibi Sanjita R/O Vill-Paina, P.S.Chousa, Distt-Madhepura 7. Mojamik Khatoon D/O Late Mahruddin R/O Vill-Paina, P.S.Chousa, Distt-Madhepura 8. Najok Khatoon D/O Late Mahruddin, W/O Md. Ali Hussain Vill-Milki, P.S.Bihpur, Distt-Bhagalpur .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 8 19-07-2013 Heard Mr. Sushant Kumar Das, learned counsel for the appellant. This appeal is directed against the judgment and decree dated 21.1.2012 passed by learned Additional District Judge, F.T.C. I, Madhepura in Title Appeal No. 13 of 2009 whereby the appellate Court below while dismissing the appeal, has affirmed the judgment and decree dated 28.01.2009/9.2.2009 passed by learned Civil JudgeI, Junior Division, Madhepura in Title Suit No. 93 of 2001 whereby the suit has been dismissed.
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The suit in question was filed by the appellant as plaintiff for partition of the land detailed in the plaint and for declaration that the revisional survey entry in the name of the defendants was null and void as also seeking permanent injunction against the defendants.
The parties to the suit come from a common ancestor. The father of the plaintiffs namely Sheikh Amanat and the defendant Sheikh Fakruddin were own brothers who had jointly purchased 14 kathas 9 dhurs of land through registered sale deed No. 565/1961 from one Ramjee Lal Agrawal appertaining to C.S. Khata No. 6, C.S. Plot No. 97 situated in Mauza Paina, P.S. Chousa DistrictMadhepura. Upon the revisional survey coming into operation, the R.S. Plot Nos. 798, 799 and 801 was carved out from the C.S. Plot No. 97 admeasuring 11 decimals 2 decimals and 1 decimal respectively of R.S. Khala No. 45. It is the case of the plaintiff that whereas plaintiff was in possession of 7 decimals of land from the South, the defendants were in possession of 7 decimals of land from the North.
It is stated that a proceeding under Section 145 of the Code of Criminal Procedure was initiated by the defendants giving rise to Misc. Case No. 53 of 2001 in relation to 11 decimals of land and the possession of the defendants were declared over the said plot. It is further the case of the plaintiff that since the defendants in the light of the order passed in the criminal proceedings, started to threaten
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the plaintiff of dispossession hence the suit was filed. The trial Court upon completion of the pleadings, framed six issues of which Issue No. 3 relatable to jointness of title and possession of the parties, Issue No. 4 relatable to the entitlement of the plaintiff to seek a decree of partition and Issue No. 5 regarding correctness of R.S. Entry in the name of defendants, are the issues relevant for the matter in contest in this appeal. The trial Court taking note of the admission of the plaintiff regarding partition of the land in 1/2 and 1/2 consequent to its purchase under the registered sale deed as well as the deposition of the plaintiff as plaintiff witness No.1 that the parties have established their house and they are living therein, decided the issues against the plaintiff and in favour of the defendants. Of the four witnesses led the plaintiff, plaintiff witness No.1 and plaintiff witness No.2 both admitted to partition by 1/2 and 1/2. The trial Court taking note of the admission of the plaintiff as also taking note of the fact that the R.S. Entry was in the name of the defendants with the plaintiff failing to prove any portion of their share being included in the R.S. Khatiyan of the defendants, concluded that the evidence led proved prior partition and that the plaintiffs had failed to establish any jointness of title as also to establish wrong entry in the name of the defendants. Having held as such the suit was dismissed and which decree has been affirmed in appeal.
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I have heard Mr. Das learned counsel for the appellant and have perused the materials on record.
During the course of hearing of this appeal, the plaint and the deposition the plaintiff as plaintiff witness No.1was produced by the learned counsel.
Paragraphs 4 and 8 of the plaint are candid admissions of the plaintiff regarding the prior partition of the property consequent upon its purchase through the registered sale deed No. 565 of 1961 and is being reproduced herein below for ready reference.
Paragraph 1 of the deposition of the plaintiff as plaintiff witness No.1 puts an end to all speculations whatsoever that may be persisting.
The plaintiff categorically admitted as follows:-
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“1……….dsokyk ysus ds ckn nksuks HkkbZ tehu ij gdnkj o n[kynkj gqvk rFkk vk/kk-vk/kk ekSf[kd cVokjk dj ml ij ekdku oxSjg cukdj jgus yxkA esjk ?kj }kj nf{k.k ls gSA eqn~nky; lc dk ?kj }kj mRrj ls gSA [kjhnxh tehu ds vk/ks ij ge n[ky dkj gSA dkxth cVokjk ugh gqvk.......”
The admissions of the plaintiff in his plaint and in his deposition leave no room to doubt that there could not have been a second suit for partition once the plaintiffs admit to the same
As regard Survey Entry, in absence of any evidence led by the plaintiffs to establish that the same had been incorrectly made in favour of the defendants, the trial Court had no other option but to reject the contentions. The finding of fact on all issues has been duly affirmed by the appellate Court.
There being thus a concurrent finding of fact on the issue raised and there existing no perversity, no cause for interference is made out.
For the reasons assigned, this Court is not persuaded enough to accept that any substantial question of law arises in this appeal.
This appeal is accordingly dismissed.
(Jyoti Saran, J)
Bibhash/-
3 issues framed by the court
Whether the lower courts were justified in dismissing the appeal upon finding that the plaintiffs had admitted a prior partition of the property.
Whether there was any substantial question of law or perversity in the concurrent finding of fact regarding the survey entry and possession.
Whether the plaintiffs were entitled to a second suit for partition after admitting the prior division of the land.
Md. Kaiyum
Jahruddin
Md. Rais
Bibi Kulsum
Bibi Sanjita
Md. Kasim Mian
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
