Dismissed

Chitranjan Pd. Yadav and Ors. v. Triveni Andit and Ors.

Patna HC10 Jul 2014SA/198/2012

Case brief

AI extract

What is this about?

Second appeal in a partition suit where the High Court determined that no substantial question of law arose. The court upheld the lower courts' findings that the suit land constituted joint family property with a sufficient nucleus, validating the partition and invalidating subsequent fraudulent sale deeds.

What did the court decide?

The appeal was dismissed without granting any relief to the appellants.

Chitranjan Pd. Yadav and Ors. Vs Triveni Andit and Ors. — Partition | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.198 of 2012

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Chitranjan Prasad Yadav S/O Late Bhudeo Yadav R/O Village - Pania, P.S. Barahat, District - Banka 2. Phooltush Prasad Yadav S/O Late Bhudeo Yadav R/O Village - Pania, P.S. Barahat, District - Banka

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Anil Prasad Yadav S/O Late Bhudeo Yadav R/O Village - Pania, P.S. Barahat, District - Banka

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Pandav Prasad Yadav S/O Late Bhudeo Yadav R/O Village - Pania, P.S. Barahat, District - Banka

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Chhatoo Prasad Yadav S/O Late Bhudeo Yadav R/O Village - Pania, P.S. Barahat, District - Banka

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Ashok Prasad Yadav S/O Late Bhudeo Yadav R/O Village - Pania, P.S. Barahat, District - Banka .... ....Defendant 2^nd set/Appellant-Appellants

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Versus

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Triveni Pandit S/O Late Parmeshwar Pandit R/O Village - Pania, P.S. Barahat, District – Banka …Plaintiff-Respondent-Respondent

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Raghu Nandan Prasad @ Ragho Pandit S/O Late Ishwar Pandit R/O Barahat, P.S. Barahat, District – Banka …Defendant 1^st set/Respondent/Respondent

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Smt. Anjani Devi W/O Bindeshwari Yadav R/O Village - Pania, P.S. Barahat, District – Banka …Defendant-Respondent-Respondent 4. Makho Devi Daughter Of Late Bhudeo Yadav, W/O Pramod Yadav R/O Village - Jakho, P.S. Dhoriya, District - Banka

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.... ....Defendant-Respondent-Respondent ====================================================== Appearance : For the Appellant/s : Mr. Brij Nandad Prasad ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER

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7 10-07-2014 The present appeal filed under section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 14.03.2012 and 30.03.2012 respectively passed by the Addl.

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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District Judge F.T.C.-IV, Banka in Title Appeal No.81 of 2010 affirming the judgment and decree dated 14.06.2010 and 24.06.2010 passed by the Addl. Munsif-III, Banka in Title Suit No. 127 of 1996. The defendants second set of the suit are the appellants.

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For the sake convenience this Court would refer to the parties as they stood at the trial. The plaintiff(s) filed the suit to declare their right title and ownership upon the land set out in Schedule-C and also to declare null and void/illegal the transaction of Schedule-C land. The sale of the suit land under registered sale deed by defendants first set was fraudulent. The plaintiffs also prayed for restraining the defendants by way of injunction.

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The case as per plaint, in brief, is that the plaintiff along with two brothers namely Ishwar Pandit and Dukhan Pandit had joint right, title and interest over the suit land/property. Ishwar Pandit being the eldest brother was the ‘Karta’ of the family. The plaintiff was employed as government teacher. In his absence the ‘Karta’ of the family dealt with family property when all the three brothers later decided to sell their family property in Mauza Pawra Rampur and to settle at Mauza Bagdumma,Tola Paniya. An area of 14 decimals was therefore jointly sold and

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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consideration money was received by Ishwar Pandit. Out of the consideration money, Ishwar Pandit fraudulently got the land conveyed in his name from Shatrughan Prasad Singh in 1975. The land under khata no.120 and 816 measuring 200 decimals were similarly acquired by the family out of the joint fund. The lands were both agricultural and homestead fully described in ScheduleB of the plaint. The land covered under Schedule-B was therefore in joint possession of the members of the family. On 27.05.1982 the property was partitioned amongst three brothers by way of khesta deed which included Schedule-B land. Each brother thus got 1/3^rd share as mentioned in Schedule-C of the plaint. After the death of Ishwar Pandit his son (defendant first set ) fraudulently transferred the land belonging to the plaintiff under three registered sale deeds in favour of the defendant second party. The plaintiff therefore claimed that all these transactions were without consideration and invalid. The land(s) covered under the three sale deeds were covered in Schedule-C/1 of the plaint which was part of the Schedule-C of the plaint. Since the purchasers, the defendant second party, wanted to take forceful possession, hence the suit. The suit was contested by the descendents of defendant no.3 Bhudeo Yadav. The said defendant denied the claim of the plaintiff over the suit land and it was averred that

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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there was no joint family property in the family of the plaintiff. All the three brothers of Ishwar Pandit had separated and dealt with the property of their share separately. Ishwar Pandit had not received any income from the joint family property. The land purchased from Shatrughan Prasad Singh was purchased by Ishwar Pandit alone out of his own income and separate fund who came in exclusive possession. The case of the plaintiff that the joint family had acquired the land was also denied. In sum and substance, the defendant claimed that Ishwar Pandit was the absolute owner of Schedule-B land inasmuch as they denied partition as claimed by the plaintiff and therefore denied the claim that the plaintiff had got 1/3^rd share in the land contained in Schedule-C of the plaint. Let it be recorded here that the defendant first party Raghu Nandan Pandit and second party Anjana Devi filed their separate written statement(s) but did not contest the case. They in fact supported the case of the plaintiff.

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On the basis of the pleadings of the parties the learned trial court framed 08 issues. Issue nos. VI & VII were found the relevant and crucial issues and as such they are noticed hereinbelow:-

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“VI: Has the plaintiff entitled to get a decree for valid rightful ownership on schedule c land of the plaint?

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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VII: Whether the transactions with respect to suit land of schedule c of the plaint is null and void, illegal transaction by virtue of sale deeds executed by defendant 1^st party to the defendant 2^nd party bearing sale deed no. 15575, dated 5.9.1996 and no.17279, dated 23.9.1996?

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The learned trial court permitted the parties to lead evidence both oral and documentary. The learned trial court found Ext.1 a reliable document which also found support from the oral evidence adduced by the parties. PWs. 1 and 3 being ‘punches’ who had signed Ext.1, in their respective depositions, supported the execution thereof. The evidence in support of the case of the defendant(s) was not found cogent and reliable. Accordingly the same was answered in favour of the plaintiff. Similarly, issue no.VII was also decided in favour of the plaintiff. The sale deeds were found invalid/inoperative. The suit was accordingly decreed. Aggrieved thereby the contesting defendants filed the appeal vide Title Appeal No.81 of 2010. The learned lower appellate court re-appraised the evidence adduced by the parties and the findings recorded on the core issues by the learned trial court in the light of the submissions of the

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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appellant(s) and found issue nos. VI and VII the core issues and thereafter set out to consider whether the conclusions drawn thereon by the learned court below were sustainable in law. The learned lower appellate court observed that if its is shown that the family had sufficient nucleus the law raises a presumption that the land held by any member of the joint family was the land of the joint family and the onus is put on the parties to demonstrate by cogent evidence that the same was acquired without the aid of the nucleus. The learned lower appellate court on perusal of the evidence found that the family had sufficient nucleus. In order to reach the said conclusion the learned lower appellate court relied on diverse documentary evidence such as Ext.4. The learned lower appellate court also found that the land acquired by Ishwar Pandit was the joint family property and the written partition document (Ext. 1) prepared on 27.05.1982 was valid piece of document and execution thereof was proved by cogent and reliable evidence. The appellate court found that Ext. 1 was in form and substance a memorandum of partition amicably prepared with the consent of the three brothers and as such non registration thereof would not make the same inadmissible in evidence. In order to reach that conclusion the learned lower appellate court drew support from diverse judgments of this

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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Court cited therein. The land under schedule-A indisputably was the joint family property of common ancestor being Parmeshwar Pandit which provided sufficient nucleus to the family and the subject land was purchased by the family in the name of Ishwar Pandit being the ‘Karta’ of the family and as such it was not the self acquired property of Ishwar Pandit. The aforesaid position was also found reflected from the oral evidence adduced by the parties. Having held so, the learned lower appellate court in paragraph 13 of the judgment concurred with the findings recorded by the learned trial court under issue no.VI setting out its own reasonings therefor. The other issues were not pressed during the course of hearing of the appeal. The learned lower appellate court however, on perusal of the evidence on record did not find any illegality in the finding(s) recorded by the learned trial court on those issues. Resultantly, the appeal was dismissed.

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Heard Mr. Brij Nandan Prasad learned counsel for the appellants and perused both the judgments passed by the two courts below.

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It has been submitted that the judgment under appeal is patently bad in law for non consideration of the relevant evidence of the defendant in right perspective. The courts below did not give credence to the fact that the subject land stood in the name

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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of Ishwar Pandit only. It has also been contented that the conclusion drawn by the learned courts below that the property of the joint family cannot be individual property is patently illegal. The case of the defendant that the suit was bad on account of non joinder/misjoinder of the parity has not been considered by the court below.

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In my view, none of the above contentions of the counsel for the appellants raise substantial questions of law. Both the courts below have rightly considered the case of the parties keeping in view the settled principles of law. Once nucleus in the joint family is shown by cogent evidence the onus shifts on the party claiming that the land was acquired otherwise. The learned lower appellate court has approached the case accordingly. Counsel of the appellants has failed to demonstrate any patent illegality and/or infirmity in such consideration of the matter by the courts below. The contention of the appellant that misjoinder/non joinder of the parties was not considered by the courts below does not appear to be well founded. In the judgment under appeal the learned lower appellate court noticed that the appellants did not raise any issue with regard to other issues including non joinder/misjoinder of the parties. The court, however, found those issues having been rightly decided by the

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Patna High Court SA No.198 of 2012 (7) dt.10-07-2014

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learned trial court. The findings on all the core issues by the courts below, in my view, do not call for any interference particularly when the same are not demonstrably shown to be perverse. Unless it is show to the Court that any legal issue of substantial nature is involved this Court would not grant any indulgence.

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In Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board (2010 13 SCC 216) the Apex Court held that in order to show that the findings recorded by the court below are perverse the appellant(s) have to demonstrate that those findings have been recorded ignoring relevant material or the findings are based on irrelevant material and/or are wholly illogical. None of the aforesaid circumstance(s) has been shown to this Court.

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Resultantly, this Court does not find any merit in this appeal which is accordingly dismissed.

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(Kishore Kumar Mandal, J)

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HR/-

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Chitranjan Pd. Yadav and Ors. v. Triveni Andit and Ors.

Case brief

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Chitranjan Pd. Yadav and Ors. v. Triveni Andit and Ors.

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