Badri Prasad vs (Deleted)
2024 Latest Caselaw 9202 Jhar

Jharkhand High Court

Badri Prasad vs (Deleted) on 12 September, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               S.A. No.92 of 2005
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Badri Prasad, s/o late Bechu Sao, resident of Latehar, P.O. & P.S.- Latehar, Dist.-Latehar .... .... .... Appellant Versus

1. (Deleted)

2. Rajendra Prasad

3. Arun Prasad

4. Vijay Prasad All are sons of late Chaturgun Sao

5. Hemanti Kumari, d/o Chaturgun Sao All are residents of Latehar, P.O., P.S. & Dist.-Latehar

6. Kedar Prasad

7. Hardwari Prasad

8. Dinesh Prasad Sl. No.6 to 8 are sons of late Bechu Sao, resident of Latehar, P.O., P.S. & Dist.-Latehar

9. Gangotari Devi, widow of Baijnath Prasad, at P.O., P.S.-Sitapur, Dist.- Sarguja (Chhatisgarh)

10. Sunaina Devi, w/o Sri Brij Kishore Prasad, Advocate, Mohalla- College Road, P.O., P.S. & Dist.-Lohardaga

11. Sunita Devi, w/o Raja Babu, resident of Mohalla-Gol Bazar, at P.O., P.S. & Dist.-Raipur (Chhatisgarh)

12. Sakuntala Devi, w/o Lal Babu, resident of Mohalla- at P.O. & P.S.- Chakradharpur, Dist.-Chaibasa

13. Pushpa Devi, w/o Santosh Prasad Sao, resident of Village, P.O. & P.S.-Pandara, Dist.-Bilaspur

14. Saraswati Devi, widow of Ashok Kumar Prasad, resident of Mohalla- Tandwa, P.O. & P.S.-Garhwa, Dist.-Garhwa

15. Meera Devi, w/o Kapil Muni Prasad, resident of Village, P.O.& P.S.- Ghaghra, Cantt. Dist.-Gumla

16. Manju Devi, w/o Krishna Prasad, resident of Village, P.O.-Chatra, P.S.-Ramgarh Cantt., Dist.-Hazaribag

17. Usha Rani, w/o Sunil Kumar, resident of Mohalla-Pathak Tola, P.O. & P.S.-Garhwa, Dist.-Garhwa

18. Kasturia Devi, w/o Ajay Prasad, resident of Village-Senha, P.O. & P.S.-Senha, Dist.-Lohardaga

19.Rajrupa Devi, w/o Devendra Prasad Gupta (Teacher), resident of Village-Karma, P.O.-Bokaria, P.S.-Manika, Dist.-Latehar ... .... .... Respondents

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For the Appellant : Mr. Rahul Kumar Gupta, Advocate : Mr. Rakesh Kr. Singh, Advocate : Ms. Swati Singh, Advocate : Mr. Surya Prakash, Advocate For the Respondents : Mr. Birendra Kumar, Advocate : Mr. Niraj Kishore, Advocate : Ms. Shobha Rani, Advocate

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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:-     Heard the parties.

   2        This second appeal has been preferred under Section 100 of

Code of Civil Procedure against the judgment and decree dated

11.03.2005 passed by the learned District Judge, Latehar in Partition

Appeal No. 06 of 2004 whereby and where under, the learned first

appellate court affirmed the judgment and decree passed by the

learned trial court being Sub-Judge-II, Latehar in Partition Suit No. 01

of 1999 dated 15.03.2004 and dismissed the counter claim of the

defendants and dismissed the appeal.

3 The brief fact of the case is that the plaintiffs who are the

respondents in this second appeal filed Partition Suit No. 01 of 1999 in

the court of Sub-Judge-II, Latehar with a prayer for half share of the

joint family property described in Schedule A to H of the plaint.

4 The case of the plaintiffs in brief is that the common ancestor

of the parties to the suit namely Kardhani Sao was having extensive

business and Kardhani Sao being the karta and manager acquired

property from the joint family fund i.e. income from agriculture and

joint family business. The property was acquired by Kardhani Sao

either in his name or in the name of his sons Bechu Sao or Chaturgun

Sao but the properties remained joint. After death of Kardhani Sao,

his two sons Bechu Sao and Chaturgun Sao inherited the property

jointly as the members of Mitakshara Hindu joint coparceners came to

own and possess the entire joint properties. The plaintiffs are the

descendants of Chaturgun Sao and the defendants are the

descendants of Bechu Sao. The plaintiffs pleaded that there is unity of

title and possession in respect of the property mentioned in the

schedule of the plaint. The daughter of Chaturgun Sao namely

plaintiff no. 6 and pro-forma defendant nos. 10 to 15 have

relinquished their right, title and interest in favour of their brothers

being plaintiff nos.1 to 4 and the plaintiff no.5 being the mother of

plaintiff nos.1 to 4 also relinquished her share in favour of the plaintiff

nos. 1 to 4. In paragraph no. 8 of the plaint, the plaintiffs have

categorically mentioned that there are other properties also recorded

in cadastral survey raiyati in the name of Kardhani Sao and Laxuman

Sao and Laxuman Sao is the son of brother of Kardhani Sao namely

Chamar Sao but the said joint family property has not been included

in this suit, as once it is included in the suit, the descendants of the

branch of Laxuman Sao also have to be impleaded and thereby unity

of title and possession would be disturbed. The plaintiffs further

pleaded that in paragraph no.8 of the plaint that there are some other

properties also alienated by Bechu Sao and Chaturgun Sao either

jointly or separately out of the coparcenary property and such

alienation and transfer is illegal but all the parties to the suit are not

interested in those properties and left those properties to be

partitioned later on by suit or otherwise and the plaintiffs sought

permission of the court under Order II Rule 2 of Code of Civil

Procedure to file the suit for partition later on.

5 The defendant nos. 1 to 4 in their written statement

challenged the maintainability of the suit on various technical

grounds and pleaded that the suit is bad for partial partition and

further pleaded that the properties mentioned in schedule A to the

written statement, which are also joint properties are not brought into

common hotch-potch, therefore the suit cannot proceed. The

defendants denied the averments made in the plaint by the plaintiffs

and claimed that the properties which stood in the name of Bechu

Sao was acquired by Bechu Sao which was the self-acquired property

from his own and separate income. Hence, there is no unity of title

and possession in respect of those properties. There are complete and

effective partitions of the properties during the life time of Kardhani

Sao in or about the year 1950. The suit is bad for non-joinder of the

necessary parties being the heirs of Laxuman Sao hence, prayed for

dismissal of the suit.

6 The pro-forma defendant nos. 10 to 15 supported the case of

the plaintiffs.

7 On the basis of the rival pleading of the parties, the learned

trial court settled the following six issues:-

(i) Whether the suit as framed is maintainable?

(ii) Have the plaintiffs a valid cause of action for the suit?

(iii) Whether there is unity of title and possession in respect of the suit property between the parties?

(iv) Whether the claim of pre-partition is true and correct?

(v) Whether the counter claim of the defendants is acceptable?

(vi) Are the plaintiffs & defendants entitled to their respective reliefs?

8 In support of their case, the plaintiffs examined altogether 22

witnesses and proved the documents which have been marked Ext. 1

to Ext.8/A. On the other hand from the side of the defendants, the

defendants examined altogether 5 witnesses and also proved the

documents which have been marked Ext. A to D/6.

9 The learned trial court first took up issue nos. (iii) and (iv)

together and after considering the evidence in the record that there

has not been any previous partition between the parties to the suit by

metes and bounds; came to the conclusion that the parties are having

unity of title and possession in respect of the suit land. The learned

trial court next took up issue nos. (v) and considering the evidence in

the record that, the defendants could not establish that the land of

village-Mako is a joint family property, arrived at the conclusion that,

the same cannot be amalgamated with the suit property and partition

of that property cannot be done; therefore, held that the counter claim

is not fit to be admitted and answered the issue no. (v) against the

defendants. Learned trial court next took up issue no. (i) and (ii)

together and came to the conclusion that there is cause of action for

filing the suit and the suit is maintainable. Lastly, the learned trial

court took up issue no. (vi) and held that the plaintiffs are entitled to

the relief prayed for and decreed the suit on contest without costs

and held that the plaintiffs are entitled to half share together and

1/8th share individually and similarly the defendants were jointly

entitled to half share and individually they are entitled to 1/18 th

share of the suit property and observed that the parties are entitled to

do takhtabandi by getting the survey knowing commissioner

appointed.

10 Being aggrieved by the judgment and decree passed by the

learned trial court, the defendant no.1 filed Title Appeal No.6 of 2004

in the court of District Judge, Latehar which was ultimately heard

and disposed of by the learned first appellate court by the impugned

judgment and decree.

11 The learned first appellate court after considering the

materials in the record and the submissions made before it,

formulated the following sole point for determination for

consideration:-

"Whether the impugned judgment is based on facts and law or not?"

12 The learned first appellate court made independent

appreciation of the evidence in the record and came to the conclusion

that the learned trial court has rightly decided the suit and affirmed

the judgment and decree passed by the learned trial court and

dismissed the appeal.

13 At the time of Admission of this appeal, the following

substantial question of law was framed vide order dated 11.05.2009

by the Predecessor Judge in the roster :-

"Whether the nucleus of the joint family, having enough savings neither having been pleaded in the plaint, nor any specific evidence worth the same having been produced by the plaintiffs either oral or documentary the suit for partition could have been decreed by the courts below, which was filed only with respect to acquire properties of defendants?"

14 Vide order dated 08.08.2024, the following additional

substantial question of law was formulated as under:-

"Whether in view of the admitted case of the plaintiff that certain portion of the joint family property has not been included in the suit nor the other coparceners been impleaded as parties to the suit; this suit for partial partition is maintainable?"

15 Learned counsel for the appellant relied upon the judgment

of Hon'ble Supreme Court of India in the case of Kenchegowda

(since deceased) by Legal Representatives vs. Siddegowda @

Motegowda reported in (1994) 4 SCC 294 and submits that in

paragraph-10, it has been categorically reiterated by the Hon'ble

Supreme Court of India that it is well settled in law that a suit for

partial partition is not maintainable and in paragraph no.16, it was

also observed that the suit for partial partition in the absence of the

inclusion of other joint family properties and the impleading of the

other co-sharers, was not warranted in law. Hence, it is submitted

that in this case since admittedly the plaintiffs have not included

certain joint family property and admittedly there is joint family

property between Kardhani Sao, the common ancestor of the

plaintiffs and the defendants as well as Laxuman Sao who is the son

of brother of Kardhani Sao namely Chamar Sao; so the suit for partial

partition is not maintainable.

16 In this respect, learned counsel for the appellant also relied

upon the judgment of Hon'ble Supreme Court of India in the case of

R. Mahalakshmi vs. A.V. Anantharaman & Ors. reported in (2009) 9

SCC 52, wherein in the facts of that case all the properties which were

inherited by the father of the parties by virtue of registered deed have

not been included in the partition suit and the defendant took a

consistent stand right from the very beginning that unless all the

properties are included in the plaint, the suit would be bad and

partial partition cannot be effected, the Hon'ble Supreme Court of

India observed that court below has committed error and set aside

and quashed the judgment and decree passed by the court below and

remanded the matter to the trial court after giving opportunity to the

parties to amend their respective pleadings to file additional

document and to lead further evidence in support of the amended

pleadings and observed that the trial court thereafter would pass the

judgment after appreciating the additional evidence and pleadings

adduced thereof. In this respect, learned counsel for the appellant

further relied upon the judgment of R. Mahalakshmi vs. A.

Kanchana & Ors. reported in (2017) 11 SCC 548.

17 Learned counsel for the appellant next draws the attention

of this Court to the judgment of Hon'ble Supreme Court of India in

the case of S. Satnam Singh and Others v. Surender Kaur and

Another reported in (2009) 2 SCC 562, paragraph no.17 of which

reads as under:-

"17. Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on record by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject-matter of a partition, the court would be entitled to pass a decree even in relation thereto."

and submits that in this case as the defendants have

specifically mentioned the joint family property left out in Schedule

A of the written statement hence, the courts below ought to have

treated the defendant as a plaintiff and would have made the

property mentioned in Schedule A of the written statement for

subject matter of partition as well.

18 Learned counsel for the appellant next relied upon the

judgment of Hon'ble Patna High Court in the case of Chandar Sah &

Ors. vs. Mst. Godhani & Ors. reported in AIR 1981 Pat 43, and

submits that therein the Hon'ble Patna High Court has reiterated the

settled principle of law that there is no presumption that a family,

because it is joint, possesses joint property or any property and

further observed that when in a suit for partition the party claimed

that any property or item of the property is joint family property the

burden of proving that it is so rests on the party asserting the same.

In this respect, learned counsel for the appellant also relied upon the

judgment of Hon'ble Supreme Court of India in the case of Sameer

Kumar Pal & Anr. vs. Sheikh Akbar & Ors. reported in (2010) 11

SCC 777, wherein, the Hon'ble Supreme Court of India referred to its

judgment in the case of Muli Gowda Gowdappa Sankh vs. Ram

Chandra Ravogowda Sankh reported in (1969) 1 SCC 386 wherein, it

was held that there is no presumption that merely because the family

is joint so the property is also joint. So the person alleging the

property to be joint family property must prove it and submits that as

the plaintiffs have failed to establish that the property recorded in the

name of Bechu Sao is from the corpus of the joint family property and

as there is neither any pleading nor any evidence to that effect hence,

it is submitted that both the courts below have committed a grave

error by arriving at the conclusion that there is unity of title and

possession in respect of the property which was exclusively recorded

in the name of Bechu Sao. Hence, it is submitted that both the

substantial questions of law be answered in favour of the plaintiffs

and the judgment and decree passed by both the courts below be

reversed and the suit of the plaintiffs be decreed.

19 Learned counsel for the respondents on the other hand

relied upon the judgment of Hon'ble Supreme Court of India in the

case of Shiv Narayan (Dead) by Legal Representatives vs. Maniklal

(dead) Through Legal Representatives & Ors. reported in (2020) 11

SCC 629 and submits that it is a settled principle of law that partial

partition of property is well accepted principle with regard to a joint

family as has been observed in paragraph no.29 of the said judgment

which reads as under:-

"29. The partial partition of property is well-accepted principle with regard to a joint family. In Mayne's Hindu Law & Usage, 16th Edn. in Para 485 the following has been stated:

"485. Partition partial or total.-- Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided.

Partial as to properties.-- It is open to the members of a joint family to severe in interest in respect to a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Until some positive action is taken to have partition of joint family property, it would remain joint family property."

20 Learned counsel for the respondents also relied upon the

judgment of Hon'ble Supreme Court of India in the case of B.R. Patil

vs. Tulsa Y. Sawkar & Ors. reported in 2022 (2) PLJR (SC) 51

wherein the issue before the Hon'ble Supreme Court of India was

whether the suit must fail on account of non-inclusion of certain

properties and non-joinder. In paragraph no.10 of the said judgment,

the Hon'ble Supreme Court of India reiterated the settled principle of

law that looks with disfavour upon properties being partitioned

partially but the principle that there cannot be a partial partition is

not an absolute one. In paragraph no.11 in the facts of that case, the

Hon'ble Supreme Court of India rejected the contention of the

defendant of that suit who was the appellant before the Hon'ble

Supreme Court of India that the suit must fail on the ground that the

appellant defendant has not been able to clearly establish the exact

extent or identity of the property available by way of ancestral

property. In that case despite claiming to have documents relating to

the properties and admitting to having no difficulty to produce them,

the defendant did not produce the same and the defendant, in that

case, could not give the boundaries of the property which were

excluded by the plaintiff and further the joint properties claimed to

be joint by the defendant, which as per the defendant was excluded

by the plaintiff from the plaint. The appellant in that case did not

claim to be in possession of the said property and the evidence

adduced by the defendant, in that case disclosed that in reality and

on the ground, the properties could not be said to be actually

available for the parties to the suit to lay claim over them. The

property not in the possession of the co-sharers or coparceners being

omitted cannot result in a suit for the partition of property, which is

in their possession being rejected and it is submitted that the suit for

partial partition being maintainable; no illegality has been committed

by both the courts below. It is next submitted by the learned counsel

for the respondents that both the courts below have returned the

concurrent finding of fact that the defendants failed to establish that

property mentioned in schedule A of the plaint is joint family

property having been purchased from the corpus of the joint family

property and there is no perversity in such concurrent finding of

facts. It is lastly submitted that both the substantial questions of law

as framed be decided in favour of the plaintiffs and this appeal being

without any merit be dismissed.

21 Having heard the submissions made at the Bar and after

going through the materials in the record, this Court considers it

appropriate to take up the second substantial question of law as to

whether in view of the admitted case of the plaintiff that certain

portion of the joint family property has not been included in the suit

nor the other coparceners been impleaded as parties to the suit; this

suit for partial partition is maintainable.

22 Now coming to the facts of the case as already discussed

above, it is a settled principle of law that looks with disfavour upon

properties being partitioned partially. There are exceptions as has

been mentioned by the Hon'ble Supreme Court of India in the case of

B.R. Patil vs. Tulsa Y. Sawkar & Ors. (supra) as already being

referred to while mentioning the submissions of the learned counsel

for the respondents in the foregoing paragraphs of the judgment

itself but in the considered opinion of this Court the fact of this case

do not bring the suit in the exception of the general principle that

there cannot be a partial partition of a suit property by filing a suit.

Unlike the case of B.R. Patil vs. Tulsa Y. Sawkar & Ors. (supra) here

it is the admitted case of the plaintiffs that there are other joint family

property of which they are in possession of but those properties have

not been included. It is the admitted case of the plaintiffs that even

the property inherited jointly by Kardhani Sao and Chamar Sao from

their father Prayan Sao has not been partitioned. The P.W.22 in

paragraph no.7 of his deposition has categorically admitted and

besides the admission in the plaint itself in paragraph no.8 that the

said property are not being made subject matter of this suit only

because descendants of Laxuman Sao who is the son of Chamar Sao

have to be arrayed as defendants.

23 Under such circumstances, this Court is of the considered

view that in view of the admitted case of the plaintiffs that certain

persons of the joint family property have not been included in the

suit nor the coparcener being impleaded as parties to the suit, the suit

for partial partition is not maintainable. So the second substantial

question of law is answered accordingly.

24 Keeping in view the principle of law settled in the case of R.

Mahalakshmi vs. A.V. Anantharaman & Ors. (supra), this Court is

of the considered view that courts below have committed an error by

allowing the suit for partial partition of the property and in the light

of the discussions made above, the judgment and decree passed by

both the courts below i.e. the judgment and decree dated 11.03.2005

passed by the learned District Judge, Latehar in Partition Appeal No.

06 of 2004 and the judgment and decree passed by the learned trial

court being Sub-Judge-II, Latehar in Partition Suit No. 01 of 1999

dated 15.03.2004 is hereby quashed and set aside.

25 The matter is remanded to the court of Sub-Judge-II, Latehar

or its successor court by giving opportunity to the parties to amend

their respective pleadings and to file additional documents and to

lead further evidence in support of amended pleadings and thereafter

the trial court being the court of Sub-Judge-II or its successor court

can pass a judgment after appreciating the additional pleadings and

evidence adduced in support thereof.

26 Since this Court is remanding the matter hence, to avoid the

trial court being prejudiced at this stage, this Court, is not answering

the first substantial question of law as already indicated above.

27 Both the parties are directed to appear before the Sub-Judge-

II, Latehar or its successor court on 13.11.2024 to take instruction from

the court concerned regarding the further proceeding before the trial

court.

28 Let a copy of this Judgment along with the Lower Court

Records be sent back to the court concerned forthwith.

29 Since the connected case being S.A. No. 364 of 2015 is

pending, Registry is directed to keep the photocopy of the entire

Lower Court Record before the same being sent back to the court

concerned.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 12th September, 2024 AFR/ Sonu-Gunjan/-