Sheo Dayal Mahto vs Babu Lal Mahto
2022 Latest Caselaw 4417 Jhar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           S.A. No. 101 of 2010

     1.     Sheo Dayal Mahto
     2. (a) Basanti Devi
        (b) Amit Kumar Mahto
        (c) Sumit Kumar Mahto
                                              .....    .....          Appellants
                           Versus
     Babu Lal Mahto

                                              ....     ....           Respondent
                            ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Harendra Kumar Mahto, Advocate Mr. Sharawan Mahto, Advocate Mr. Ahalya Mahto, Advocate For the Respondent(s) : Mr. Dilip Kumar Prasad, Advocate Mr. Ajay Kumar Pathak, Advocate

CAV ON 14.06.2022 PRONOUNCED ON 04.11. 2022

1. The appellants are the plaintiffs and the appeal has been preferred against the Judgment of reversal passed by the Additional Judicial Commissioner, Fast Track Court No.6, Ranchi in Title Appeal No.81/07.

2. The parties shall be referred by their original placement in the suit and shall include their legal representatives substituted from time to time.

3. The plaintiffs Sheo Dayal Mahto S/o Late Jhaboo Mahto and Manbodh Mahto S/o Late Somra Mahto, filed suit for partition of the suit land to the extent of half share of the plaintiff and to carve out separate Takhta for the same.

PLAINTIFF'S CASE

4. Both the parties are Hindus and are governed by the Mitakshara School of Hindu Law as well as the Hindu Succession Act. It is averred that the suit land is recorded in the name of (i) Doman Mahto S/o Sobh Nath Mahto, (ii) Bodh Nath Mahto s/o Munga Mahto, (iii) Dahru Mahto s/o Jarka Mahto in the record of rights. Jarka Mahto and Munga Mahto, both were own brothers.

Jarka Mahto died leaving behind his two sons namely, Dahru Mahto and Jhabbu Mahto. The said Dahru Mahto died issueless. Jhabbu Mahto had two sons namely Sheo Dayal Mahto, plaintiff no. 1 and Somra Mahto. Somra Mahto died leaving behind his only son namely Manbodh Mahto (P2). Bodh Nath Mahto died leaving behind his only son Babu Lal Mahto, who is defendant in this suit. The recorded tenants died leaving behind the plaintiffs and the defendant as co-sharers and are entitled to inherit the suit property being the successors of the recorded tenant.

5. It is further averred that the defendant is residing in the village Kedal, P.S. Sadar where the suit land situated and the plaintiffs are living in village Sumangram, Tola Dhowia, P.S- Burmu, Dist- Ranchi and as such the defendant cast a cloud over the title of the plaintiffs over the suit land. The land in suit are not exclusive to the defendant rather the plaintiffs have got ½ share in it. The plaintiffs are heirs and successors of Doman Mahto and the defendant is heir and successor of Bodh Nath Mahto and as such they are entitled to inherit half share in the suit properties. The genealogical table of the parties as per the plaintiff's case is as under:

           Jarka Mahto             Munga Mahto                 Sobhnath Mahto
                                Bodhnath Mahto

Dahru Mahto Jhabhu @ Jhabhal Mahto Babu Lal Mahto Doman Mahto (died issueless)

Sheo Dayal Mahto (p.n1) Somra Mahto

Manbodh Mahto (P.no 2)

6. There was unity of title and possession in between the parties for the suit land. The defendant was disturbing the possession of the plaintiffs over the suit land, which had never been partitioned and the parties are still joint. The plaintiffs demanded partition but the defendant evaded it on same pretext or the other.

DEFFENDANT'S CASE

7. The sole defendant has appeared and contested the suit. The suit was barred under section 34 of the Specific Relief Act, 1963. It has further been alleged that the plaintiffs has never been in possession over the suit land at

any material time. Neither the plaintiffs nor their father has or had any title over the suit property. Sobhnath Mahto, Munga Mahto, both were full brothers. Sobhnath Mahto died leaving behind a son Doman Mahto, who died issueless. Manga Mahto died leaving behind a son Babulal Mahto, the defendant. Dahru Mahto son of late Jarka Mahto also died. It has been pleaded that Jhablu Mahto, the father of the plaintiffs, was not the son of Jarka Mahto nor the plaintiffs are members of the defendants family and as such the genealogy given in the plaint is wrong and denied. The land of khata no. 20 is ancestral property of the defendant in which the plaintiffs have got no manner of right, title and interest. The plaintiffs and their father were stranger to the family of defendant because they were originally a resident of village Samugram, Tola Dhowia, P.S.- Burmu, District- Ranchi and as such they are not entitled to inherit the suit property as successors of the recorded tenant. The plaintiffs were never in joint possession of the suit land nor they have got right, title over the suit land and as such it is false to say that the plaintiffs are entitled to get the ½ share in the suit land as they are not the heirs and successors of Doman Mahto. The genealogy given in the plaint is wrong. The R.S. record of right was prepared in the name of Doman Mahto son of Sobh Nath Mahto, Budhnath Mahto sons of Manga Mahto and Dahru Mahto son of latge Jarka Mahto. The correct Genealogy is given as under which will clear the relationship between the defendant and the recorded tenants:-

GENEALOGY Ram Nath ↓ __________________________ ↓ ↓ Babu Lal Jarka ↓ ↓ ___________________________ Dahru ↓ ↓ (died issueless) Sheo Nath Munga ↓ ↓ Domna (died issueless) Bodhnath ↓ Babulal (Defendant)

8. It is averred that Domna Mahto and Dahru Mahto died issueless one after another leaving behind Babulal Mahto as legal heir and successors of the recorded tenant. There is no unity of title and possession of the parties in respect of suit land and hence there is no question of disturbing the possession of the plaintiffs. It is also false that the plaintiffs are in joint possession over the suit land. The defendant is sole legal heir and successor of the recorded

tenant and is absolute owner of the property in question, hence the question of demanding partition from the defendant does not arise. It has been alleged that the plaintiffs have filed the present suit for declaration of their title in grab of the partition suit but the plaintiffs have no locus standi to file the present suit and as such the suit is liable to be dismissed with cost.

9. On the basis of pleading on behalf of both parties, following issue have been framed for adjudication as under:-

      (i)     Is the suit maintainable in its present form?
      (ii)    Is there any valid cause of action for the suit?
      (iii)   Is the suit barred by limitation?
      (iv)    Is the suit barred by adverse possession and ouster?
      (v)     Is the suit barred under section 34 of the Specific Relief Act?
      (vi)    Is there any unity of title and possession of the parties over the
              suit property?

(vii) Is the Genealogical given in the plaint are true and correct?

(viii) Have the plaintiffs got ½ share in the suit property and they are entitled for a decree of partition of suit property to the extent of their ½ share?

(ix) As to what relief or reliefs the plaintiffs are entitled to?

10. The trial court decreed the suit for partition by recording the following findings of fact:

I. The genealogical given in the plaint was correct and as such issue no.

VII was decided in favour of the plaintiff. The genealogical table was accepted on the basis of oral evidence of the plaintiff as the deposition of the Defendant was inconclusive and contradictory. Defendant witnesses in their cross-examination had admitted their ignorance about the genealogy. Ext 1 showed that Bodh Nath Mahto S/o Manga Mahto and Jhabla Mahto S/o Jarka Mahto had sold raiyati land of village kedal. The execution of this sale deed was accepted as an evidence that Jarka had another son who had sold the land along with Bodh Nath Mahto. The Court also relied on the power of attorney (Ext-2) executed jointly by Plaintiff no.1 and Plaintiff no.2 jointly in favour of one Binod Kumar Ranjan in 2004 for the lands of khata no.20, plot no. 157 area 0.45 decimal. This document was marked as Exhibit without objection.

II. There was unity of title and possession of the plaintiffs. As such from the documentary evidence (Ext 1 &2) the plaintiffs had half share in the suit properties and since no partition had ever taken place the plaintiff was entitled to the decree for partition.

11. The first appellate court reversed the findings of the trial Court, set aside the Judgment and Decree and allowed the appeal. It did not accept the genealogical table of the parties as pleaded on behalf of plaintiff for the reason that name of Jhabua @ Jubhla Mahto the predecessor-in-interest of the plaintiffs did not figure in the record of right. The suit land was recorded in the name of Doman Mahto, Bodh Nath Mahto and Dahru Mahto. The appellate Court noted that name of Jhabua @ Jubhla Mahto was conspicuous by its absence. This belied their case that Jhabbu @ Jhubla was brother of Dahru Mahto son of Jarka Mahto one of the recorded tenant along with Doman Mahto and Bodh Nath Mahto in the khatian of khata no.20 of village Kedal. It was not the case of the plaintiff that the father was not alive when khatian was prepared sometimes around 1930-32.

12. On the contrary the documentary evidence of certified copy of sale deed (Ext-1) executed jointly by Bodhnath Mahto son of Munga Mahto and Jhubla Mahto S/o Charka Mahto instead of Jhabu Mahto S/o Jarka Mahto's claimed to be father of the plaintiff namely Jhabu Mahto was executed way back in 1956 that is hardly 23 years after the preparation of the khatian. The sole documentary basis of upholding the plaintiffs claim regarding their entitlement in the suit land is Exhibit 1, photocopy of a registered sale deed executed on 30.3.55 with the objection from defendant. Apart from the general objection regarding admissibility of the photocopy of certified copy of sale deed the fact that even on the said Exhibit 1 name of the plaintiff's father Jhabbu Mahto @ Jhubla Mahto S/o Jarka Mahto is not mentioned brother name of Jhabla Mahto son of Charak Mahto has been mentioned. In second Exhibit 2 which is photocopy of power-of-attorney claim to be executed jointly by both plaintiffs with regard to 45 decimals of land of plot no.157 of khata no.20 in village kedal in favour of Vinod Kumar Ranjan is of no relevance as far as the defendants case that plaintiffs are outsiders and are not heirs and successors of the recorded tenant is concerned. The defendants are not party in Exhibit 2. The appellate court concluded that the learned trial

court has placed implicit reliance upon the oral evidence brought by the plaintiff but their depositions are contradictory.

13. The appeal has been admitted to be heard on the following substantial question of law:

"Whether the appellate Court while reversing the judgment and decree passed by the learned trial court has committed an error of law while placing full reliance on the record of rights in complete exclusion of other evidence on record?"

14. In order to answer the substantial question of law, it need to be appreciated that in a suit for partition the central question before the Court is whether there existed a status of unity of title and possession between the parties. In order to determine this question, the evidence is to be looked in its totality which includes the documentary evidence. Record of rights is relevant evidence in this context as it reflects the manner in which the property is dealt with. Partition is a severance of joint status and all that is necessary to constitute partition is a definite and unequivocal indication of the intention of a member of joint family to separate himself from the family and enjoy his share in severalty but this intention has to be communicated to other members of the family. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in broader sense. A disruption of joint family status by a definite and unequivocal intention to separate implies separation in interest and in right, although, not immediately followed by a de-facto actual division of the property. In case where an ancient partition is pleaded there can be no precise evidence regarding the actual partition. The evidence of partition has to be culled from the manner in which the parties have been living, how they have been dealing with the joint family property and the income arising therefrom. Determination of the question, whether the parties are joint or separate is beset with difficulties, as the party claiming partition looks forward to gain from it, and those resisting it apprehend losing some share or settled possession of their property. Separation in mess, income and dealing with the property independently can be an evidence of partition.

15. The entry in column no.2 i.e. tenant's column of the record of right mentions the name of raiyats which can be evidence of jointness when it has been jointly recorded in the name of brothers. Separate entry in the remarks

column or Kabjwari, is as such not an evidence of partition but can be an evidence of separate possession at the time of relevant survey, whether cadastral or revisional. It indicates that parties were dealing separately with the landed property. These are material evidence which is to be read with other material evidence to determine the status of jointness or partition. It is a settled principle of law that record of rights neither creates nor extinguishes title but is valuable piece of evidence with respect to the possession of parties. Separate possession can be evidence of separate possession by convenience or by partition. In AIR 1946 (Pat) 278 Mt. Ramjhari Kuer and others Vs Dayananda Singh and others the residential houses were recorded in the name of members of different partition branches separately. Therefore, the entries in the record of rights were regarded of considerable importance indicating separation in the sense of not only definition of shares but also partition.

16. Admitted position a. The suit land stood recorded in the name of Doman Mahto S/o Shobnath Mahto, Bodh Nath Mahto S/o Munga Nath Mahto and Dahru Mahto S/o Jarka Mahto.

b. Doman and Dahru Mahto died issueless.

c. Defendant Babulal Mahto was the son of Bodh Nath Mahto

17. In the instant case the main contentious issue on which both the learned Courts below have differed is whether Bodh Nath Mahto was son of Jarka Mahto or the plaintiffs are rank outsiders as held by the first appellate Court.

18. The trial Court has relied on Ext 1 which is the sale deed executed jointly by Bodh Nath Mahto and Jhubla Mahto. If they did not form the co- owner what was the occasion for joint execution of the sale deed way back in 1955. The learned appellate Court disbelieved it, as it had been executed after 23 years of the preparation of Khatian and the name differed as it was Jhabla Mahto S/o Charak Mahto and not Jhabu Mahto S/o Jarka Mahto.

19. This Court is of the view that the Appellate Court erred in disbelieving Ext 1 which is the sale deed executed jointly by Bodh Nath Mahto and Jhubla Mahto. The proof of document and effect of a proved document are two different things. Proof of a document is dealt in Part II and its effect in Part III of the Evidence Act. Photo copy is admissible into evidence as secondary

evidence. Once it has been marked as exhibit without objection, there was no reason to doubt the veracity of its due execution.

20. The effect of this documentary evidence which is the joint execution of the sale deed by the predecessor-in-interest of the plaintiff and the defendant is that there was a status of jointness between both sides and Jhabu Mahto was not an outsider. Execution of the sale deed by the predecessor-in- interest of the Defendant shall amount to admission. An admission, in the legal sense is not always an admission in the popular sense, i.e. a statement which, at the time it was made, was against the real or apparent interest of the party. But an admission may also state facts against interest, as where it admits a claim or a fact relied on by the adversary. In such cases, the admission is used as evidence of the truth of its contents as possessing an evidentiary force per se. It is then equivalent to affirmative testimony for the party offering it. Admission in pleading and admission in evidence are two different things. Provision dealing with admission made in pleading is provided under Order 12 and Order 8 Rule 5 of the CPC.

21. The execution of the sale deed will amount to Estoppel by Deed which rests on the principle that when a person has entered into a solemn engagement by deed under seal with another person or under him, he shall not be allowed to set up the contrary of his assertion in the deed. Justice and equity requires that the parties to a deed or those claiming through such parties cannot be permitted to deny the content and recital of the deed unless it is tainted by fraud.

22. In the present case, the joint execution of the sale deed with respect to part of the property of the same village by the father of the plaintiff no.1, grandfather of plaintiff no.2 on the one hand and the father of the Defendant on the other, is in the teeth of the assertion on behalf of the Defendant that the plaintiff was rank outsider. It is a clinching evidence of the jointness of status.

23. The learned Appellate Court, instead appears to be moved by the absence of the name of Jhabu Mahto in the record of right along with Doman Mahto, Dahru Mahto and Budhnath Mahto. There can be various reasons for such omission in the survey settlement record of rights. But once there was other oral and documentary evidence of jointness, then appellate Court was not supposed to substitute its view with that of the trial Court when such two views were possible.

24. The substantial question of law is accordingly answered that the appellate Court erred in placing sole reliance on the record of rights in disregard of the other documentary and oral evidence.

The Judgment and decree passed by the Appellate Court is set aside and that of the Trial court is restored.

The appeal is allowed. No costs.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 4th November, 2022 AFR /AKT