Dismissed

Indu Bhushan Singh v. Sunaina Devi and Ors.

Patna HC24 Apr 2013SA/545/2010

Case brief

AI extract

What is this about?

In this Second Appeal regarding a title dispute over land, the Patna High Court dismissed the appeal. The Court upheld concurrent findings that no partition existed before the 1959 sale and that the sale by the family karta for Shradh expenses was valid, noting the matter involved primarily factual disputes rather than substantial questions of law.

What did the court decide?

The appeal was dismissed as the dispute involved only factual questions regarding partition and possession, amounting to no substantial question of law.

Indu Bhushan Singh Vs Sunaina Devi and Ors. — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.545 of 2010 =========================================================== Indu Bhushan Singh @ Indra Bhushan Singh son of late Bhup Narayan Singh, resident of Village- Shobhe Parsa, P.O. & P.S.- Parsa, District –Saran. .... .... Appellant. Versus 1.Sunaina Devi wife of late Satya Narayan Singh. 2.Lal Babu Singh son of late Satya Narayan Singh. 3.Chandra Bhushan Singh son of late Gopal Jee Singh. 4.Sona Kaur wife of late Bidya Bhushan Singh. 5.Lallan Singh son of late Bidya Bhushan Singh. 6.Nand Kumar Singh son of late Gopal Jee Singh. All the residents of Village-Shobhe Parsa, P.O. & P.S. Parsa, District-Saran. 7.Most. Prabhawati Kuar wife of late Ram Layak Singh, daughter of late Gopal Jee Singh, resident of Village- Newaji Tola, P.O.- Chapra, P.S. Chapra Mufassil, District- Saran. 8.Most. Lilawati Devi wife of late Shubh Narayan Singh, daughter of late Gopal Jee Singh, resident of Village- Puraina, P.O. & P.S.- Amnour, District- Saran …..Defendant 1^st set/ Respondent 1^st set in Court below. 9.Devi Lal Thakur son of late Chitar Thakur. 10.Banarash Thakur son of late Chitar Thakur. 11.Banila Thakur son of late Chitar Thakur. 12.Hira Thakur son of late Chitar Thakur. No. 9 to 12 are residents of Village-Chandpura, P.O. & P.S.- Parsa, District – Saran. ….Defendant 2^nd set/ Respondents 2^nd set in the court below, .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. MAHESH NARAYAN PARBAT,ADVOCATE. For the Respondent/s : Mr. =========================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date: 24-04-2013

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This is a Second Appeal filed under Section 100 of the Code of Civil Procedure by the appellant, Indu Bhushan Singh, who was the plaintiff before the trial court. The appellant is aggrieved by the Judgment and decree dated 16.06.2010 and 28.06.2010 respectively passed by learned Additional District Judge-VIIIth , Saran at Chapra, in Title Appeal No.100 of 1991 / 30 of 2009 whereby he dismissed the appeal and confirmed Judgment and decree

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Patna High Court SA No.545 of 2010 dt.24-04-2013

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dated 17.09.1991 and 28.09.1991 passed by the learned Munsif-II nd , Chapra in Title Suit No.74 of 1981. By the said Judgment and decree the learned trial court had dismissed the suit.

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The plaintiff / appellant had filed the title suit for declaration of his title and confirmation of possession in respect of the suit land as described in Schedule-II of the plaint. The plaintiff also sought for alternative relief of recovery of possession and permanent injunction. The suit land, as described in Schedule-II, apertains to Khata No.50, Khesra No.841, measuring an area 1 Katha 12 ¼ Dhur.

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The plaintiff / appellant‟s case, in brief, is that one Ram Yad Rai, the ancestor of the plaintiff had three sons, namely, Bhagwan Rai, Raghunandan Rai and Yadu Rai. Bhagwan Rai had a son, Shiv Ratan Singh. Shiv Ratan Singh had two sons, Gopal Ji Singh ( original defendant no.1) and Bhup Narayan Singh (husband of original plaintiff no.1, Jharokha Kuar, no.2). Plaintiff No.1, Indu Bhushan Singh @ Indra Bhushan Singh is the son of Bhup Narayan Singh. Raghunandan Rai had a son, namely, Jai Karan Rai. Yadu Rai had also a son, Bhola Nath Rai @Bhore Nath Rai who died issuless in the state of jointness with Indu Sheo Ratan Rai and Jai Karan Rai. Bhup Narayan Singh died leaving behind his minor son Indra Bhushan Singh (plaintiff / appellant No.1) and his wife Jharokha Kuer, during life time of Sheo Ratan Singh. His wife also died and, therefore, the entire joint family property of Ram Yad Rai devolved upon Sheo Ratan Singh and Jai Karan Rai which was partitioned by metes and bounds. The plaintiff‟s further claim is that Sheo Ratan Singh died in state of jointness with his son Gopal Ji Singh, his grand son Indra Bhushan Singh ( plaintiff / appellant no.1) and daughterin-law (Jharokha Kuar, Plaintiff no.2) . The plaintiff no.1, thus, came in

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Patna High Court SA No.545 of 2010 dt.24-04-2013

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possession over the entire property.

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The plaintiff ‟s further claim was that after some time, Gopal Ji Singh ( defendant no.1) and heirs of Bhup Narayan Singh, i.e. plaintiff also separated and partitioned the property and came in separate possession over the property after such partition.

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As per the plaintiff‟ case, in the month of September, 1980 the plaintiff learnt that Gopal Ji Singh, defendant no.1, with mala fide intention had executed sale deed dated 10.09.1959 to one Chitar Thakur, in respect of the property of the plaintiff‟s. The dispute resulted into initiation of proceeding under Section 144 of Cr.P.C. which was, however, dropped.

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It was pleaded that the total area of Plot No.841 under Khata No.50 was 6 Katha 9 Dhurs. After partition 3 Katha 4 ½ Dhurs each was allotted to Jai Karan Rai (towards west) and Sheo Ratan Singh (towards east). After death of Sheo Ratan Singh, it was partitioned between the plaintiff and the defendant no.1 and eastern 1 Katha 12 ¼ Dhurs was allotted to the plaintiff and 1 Katha 12 Dhurs was allotted to defendant no.1. It was pleaded that after partition defendant no.1 was never guardian of plaintiff no.1 and till the plaintiff no.1 was a minor his mother acted as his guardian. It was pleaded that defendant no.1 or the vendee, i.e., defendants no.2 to 5 never came in possession over suit property after execution of sale deed dated 10.09.1959 in fevour of Chitar Thakur.

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The plaintiffs claim that after they learnt about the said sale deed of 1959, they filed the suit in September, 1980 as cause of action arose when they learnt about the fraud was committed by defendant no.1.

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The defendant contested the suit. The defendants no.2 to 5 who were the vendees, filed their joint written statement disputing the

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Patna High Court SA No.545 of 2010 dt.24-04-2013

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partition in the family as alleged by the plaintiff. They asserted that Sheo Ratan Singh died in the year 1059 and his son Bhup Narayan Singh died in 1950. They admitted the facts as alleged in the plaint that 3 Katha 4 ½ dhurs land belonged to one Jai Karan Rai but disputed the fact that Jai Karan Rai sold the suit property.They denied any partition between plaintiff and defendant no.1 and asserted that there was no sale of property which is said to have been partitioned as per the plaitntiff‟s case. It was mentioned in the written statement that Sheo Ratan Rai died leaving behind his son Gopal Singh, defendat no.1 and a minor grand son Indra Bhushan Singh( plaintiff no.1). The father of plaintiff no.1 had died much before, who was a minor by that time and was a member of Hindu Mitakshara joint family and Gopal Ji Singh(defendant no.1) was a karta of the family. It was asserted by the defendants/respondents that to fulfill the demand of money in Shradh ceremony of Sheo Ratan Singh and for the benefit of his family, the defendant No.1 being karta of the joint Hindu family sold eastern portion of Plot No.81 by registered sale deed dated 10.09.1959 in fevour of the defendant , namely, Chitar Thakur, and put thumb over the same. Said Chitar Thakur was accordingly coming in possession over purchased land since the date of purchase till he died. Thereafter the contesting defendants came in possession over the same. Chitar Thakur got his name mutated in respect of the land so purchased and paid rent to the Government. They alleged that the plaintiff had the knowledge of such transfer of land in favour of father of the contesting defendant and that they were in continuous possession of the suit land.

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On the basis of the rival pleading learned trial court framed

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nine issues including issues no.3,5,6,7 and 8 which read as follows:

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“III. Whether the suit is barred by law of limitation and

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Patna High Court SA No.545 of 2010 dt.24-04-2013

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principles of estoppel ?

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V. Whether the suit is barred by adverse possession ?

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VI. Whether there was any partition between Gopaljee

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Singh and the heirs of Bhup Narayan Singh and the suit land was allotted in the share of plaintiffs?

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VII. Whether the plaintiffs are in possession over the suit

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land ?

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VIII. Whether the sale deed dated 10.09.1959 executed by

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Gopal Jee Singh in fevour of Chhitar Thakur is valid and effective.”

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After the issues having been framed, the parties led their respective evidences both oral and documentary. The learned trial court on the basis of such evidence on record came to a finding as regards the Issue No.6 that the plaintiffs and defendant no.1 were in state of jointness as the plaintiffs failed to prove the factum of partition as alleged in the plaint. As regards Issue no.3, learned trial court held that the suit was barred by limitation as it was not filed within three years from the date the plaintiff attained majority, relying upon a Judgment of Andhra Pradesh 1975 A.I.R, 484. Further dealing with Issue no.7 and learned trial court came to a finding that the plaintiff did not have possession over the suit land. Issue no.5 was also decided against the plaintiff holding that the defendant also acquired title by adverse possession over the suit land. Learned trial court on the basis of analysis and appreciation of the evidence on record, while deciding Issue No.8 came to a finding that the sale deed dated 10.091959 executed Gopal Ji in favour of Chitar Tharkur was valid.

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An appeal was preferred against the Judgment of the trial court vide Title Appeal No.100 of 1991 / 30 of 2009 which came to be heard

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Patna High Court SA No.545 of 2010 dt.24-04-2013

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and decided by learned Additional District Judge-8^th , Saran at Chapra. From the Judgment and decree of the First Appellate court, which is under challenge in the present Second Appeal, it appears that the learned First Appellate court concurred with the finding of fact arrived at by the trial court on all counts.It also appears from the Judgment of the First Appellate Court that taking into consideration the orals and documentary evidence adduced in course of trial, it dismissed the appeal vide Judgment and decree dated 16.06.2009 and 28.06.2010.

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Mr. Mahesh Narayan Parbat, learned counsel appearing on behalf of the appellant, has contended that the courts below committed gross error of law while coming to a finding that defendant no.1 could transfer the suit land which belonged to the share of the plaintiff, which devolved upon them by virtue of Section 6 of the Hindu Succession Act, 1956( hereinafter to be referred to as „the Act‟) after death of Sheo Ratan Singh. He contended that by virtue of said provision of the Act, the original plaintiff no.2, being surviving female relative specified in Clause-I Schedule to the Act. He contended that in such circumstance defendant no.1 did not have the capacity to transfer the share of the joint family property which devolved upon original plaintiff no.2.

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Learned counsel for the appellant may be right in his submission that upon death of Sheo Ratan Singh, original plaintiff no.1 was entitled to her share in terms of proviso to Section 6 of the Act so far as the question of Second Appeal as to whether there was jointness in the family of which Gopal Ji Singh was the karta after death of Sheo Ratan Singh. The next question whether in view of the fact as narrated in the impugned orders Gopal Ji Singh could alienate the suit property in his capacity of karta in the family

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Patna High Court SA No.545 of 2010 dt.24-04-2013

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in order to meet the legal necessity of the joint family. The other question would be as to whether the plaintiff no.1 could question the validity of sale deed executed by Gopal Ji Singh on 10.9.1959 by filing a suit in the year 1981.

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On the basis of analysis of the evidence on record, there is concurrent finding by the courts below that the plaintiff could not prove that there was partition in the family prior to execution of the sale deed dated 10.9.1959. It transpires from the Judgment of the courts below that the altogether six witnesses were examined on behalf of the plaintiff out of which P.Ws. No.3,5 and 6 were formal witnesses and P.W.2 proved a zerpesgi deed (Ext.1 dated 7.6.1960). P.W.4 happens to be the plaintiff himself. P.W.1 while supporting the case of partition failed to state even the month and year of partition. He is said to have admitted in his cross examination that Sheo Ratan Singh was the karta of the family till his death and after death of Sheo Ratan Singh and till separation in the family Gopal Ji Singh was the karta of the family. In this background and taking into account other factors, the courts below came to the concurrent finding that the plaintiff could not prove partition prior to execution of sale deed dated 10.09.1959. The courts below also came to a finding that Gopal Ji Singh was the karta of the family till partition. In my view, in such circumstance, in order to meet the legal necessity of the family, Gopal Ji Singh could execut the sale deed. The same cannot be questioned after 22 years and in any view, beyond three years from the date when the plaintiff attained majority. I do not find any infirmity in the findings of the courts below on this aspect, so as to involve any substantial question of law.

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Learned counsel for the appellant has vehemently

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Patna High Court SA No.545 of 2010 dt.24-04-2013

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submitted that the validity of the sale deed can be tested only after its perusal so as to analyse as to whether the transfer was made to meet legal necessity of the joint family. However, I find from the Judgment of the learned trial court that there is recital in the sale deed dated 10.9.1959 (Ext.B) to the effect that it was being executed in lieu of the money which he had taken to meet the expenses of Shradh ceremony on death of Sheo Ratan Singh.

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In any view of the matter, I find that the dispute involved in the present appeal are mainly disputes on facts as regard the partition in the joint family and possession of defendants no.2 to 5 over the suit property. The contention in the present Second Appeal, in my opinion, does not involve any substantial question of law which requires adjudication by this Court in exercise of power under Section 100 of the C.P.C.

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In view of the above, I do not find any merit in this appeal and it is, accordingly, dismissed.

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The Patna High Court AnilKrSinha/N.A.F.R

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(Chakradhari Sharan Singh, J)

Indu Bhushan Singh v. Sunaina Devi and Ors.

Case brief

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Indu Bhushan Singh v. Sunaina Devi and Ors.

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