Jharkhand High Court
C Prakash Mahto vs Doman Mahto on 12 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:27885
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 39 of 1995(R)
1. Harihar Mahto (Dead and substituted vide order dated
15.12.2022)
1.a Biroti Devi,Daughter of Late Harihar Mahto, and Wife of
Puskar Mahto, resident of Village- Diro, P.O. Janampiri P.S.
Tamar, District-Ranchi.
1.b Dropati Devi, D/O: Harihar Mahto, Wife of BhimSenMahto,
Resident of Village- Koradih, P.O. Lamdupdih and P.S. Sonahatu,
District-Ranchi.
1.c Prakash Mahto, Son of Late HariharMahto, Resident of Village
Nawadih, P.O. Baredih, P.S. Tamar, District-Ranchi.
2. Gobardhan Mahto (Dead and substituted vide order dated
15.12.2022)
Both sons of late Ganesh Mahto residents of village-Nawadih,
P.S.- Tamar, District-Ranchi.
2.a Rambha Devi, W/O: LakhindraMahto, D/O: GobardhanMahto,
Resident of Village Sarmali, P.O- Janampiri, P.S. Tamar, District-
Ranchi.
2.b Ahilaya Devi, W/O: GopalMahto, D/O: GobardhanMahto
Resident of Village-Ragrabarang, P.O. Chaladih, P.S. Tamar,
District-Ranchi.
2.c DinbandhuMahto, son of late GoberdharnMahto, Resident of
Village-Nawadih, P.O. Baredih, P.S. Tamar, District-Ranchi.
2.d JagdishMahto, S/O: Late GoberdhanMahto, Resident of
Village-Nawadih, P.O. Baredih, P.S. Tamar, District-Ranchi.
2.e Sovya Devi, W/O: Pradhan Mahto, D/O: Late Gobardhan
Mahto, Resident of Village- Pedaidih, P.O Janampiri, P.S. Tamar,
District-Ranchi.
2.f Baso Devi, W/O: Late Gobardhan Mahto, Resident of Village-
Nawadih, P.O. Baredih, P.S. Tamar, District-Ranchi
3. Sushila Devi, Wife of Mohan Mahto and daughter of late Ganesh
Mahto, resident of Village-Jojodih, P.S.- Tamar, District-Ranchi.
(Dead and substituted vide order dated 15.12.2022)
3.a Sarmila Devi, D/O: Sushila Devi, W/O: Karma Mahto,
resident of Village Serenghhatu, P.O. & P.S. Sonahatu, District-
Ranchi
3.b Nirla Devi, D/O: Sushila Devi, W/O: ChunuMahto, resident of
Village & P.O. Ulilohar, P.S. Tamar, District-Ranchi
3.c Nirmila Devi, D/O Sushila Devi, W/O: UmeshMahto, resident
of village-Baredih, P.O. Parasi, P.S. Tamar, District-Ranchi
3.d BasudeoMahto, son of Sushila Devi, resident of village-
Jojodih, P.O. Ulidih, P.S. Tamar, District-Ranchi.
4. Purni Devi, Wife of Mahesh Mahto, resident of Village-
Sunderdih, P.S.- Tamar, District-Ranchi.
5. Lohra Mahto(Dead and substituted vide order dated
16.07.2025)
5.a Anant Kumar Mahto, Son of Late LohraMahto, aged about 54
years
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5.b GangaramMahto, Son of Late LohraMahto, aged about 50
years
5.c Subhash Chandra Mahto, Son of LohraMahto, aged about 40
years
All resident of Village CheyadihDimbujarda, P.O. Baredih, P.S.-
Tamar, District-Ranchi (Jharkhand)
5.d Yashoda Devi, Daughter of LohraMahto, Wife of
SahodarMahto, aged about 48 years, Resident of Village-Dero,
P.O.- Janumpiri, P.S.- Tamar, District-Ranchi.
5.e Jayanti Devi, Daughter of LohraMahto, Wife of Rajesh Mahto,
aged about 47 years, Resident of House No. 79, Tank Road, New
Ulidih, P.O. & P.S.- Mango, Jamshedpur, District-East
Singhbhum.
6. Dubraj Mahto(Dead and substituted vide order dated
15.12.2022)
Both sons of late BindaMahto, residents of village-Nawadih, P.S.-
Tamar, District-Ranchi
6.a AnkitaKumari, D/O: DubrajMahto, Resident of Village
Nawadih, P.O. Baredih, P.S. Tamar, District- Ranchi.
6.b Abhishek Kumar, S/O DubrajMahto, Resident of Village
Nawadih, P.O. Baredih, P.S. Tamar, District-Ranchi.
6.c NalitaKumariMahto, wife of Late DubrajMahto, Resident of
Village Nawadih, P.O Baredih P.S- Tamar, District- Ranchi.
7. Jaleshwari Devi wife of BikramMahto, resident of Village-
Sarmali, P.S.- Tamar, District-Ranchi.
8. Panchami Devi, Wife of GhanshyamMahto, resident of Village-
Chainpur, P.S.-Arki, District-Ranchi.
8.a Bimla Devi, D/O Panchami Devi, W/O Bijay Kumar Mahto,
resident of Village-Panla, P.O. Baburamdih, P.S. Tamar, District-
Ranchi.
8.b BisheshwarMahto, Son of Panchami Devi, resident of Village-
Chainpur, P.O. Jojohatu, P.S. Arki, District- Khunti.
All by caste-Kurmi, by occupation-cultivators.
... ... Plaintiffs/Appellants/Appellants
Versus
1. Doman Mahto, son of Late BalikaMahto resident of Village-
Nawadih, Tola, Chainyadih, P.S.- Tamar, District-Ranchi (Dead
and substituted vide order dated 15.12.2022)
1.aAnil Kumar Mahto, Son of Late Doman Mahto
1.bShambhuMahto, Son of Late Doman Mahto
1.cMuni LalMahto, Son of Late Doman Mahto
1.dAshok Kumar Mahto, Son of Late Doman Mahto,
All are resident of Village-Nawadih, P.O. Baredih, P.S. Tamar and
District-Ranchi, Jharkhand
2. Ghashia Mahto, Husband of Ghasni Devi of village-Modidih, P.S.-
Tamar, District-Ranchi
3. Mini Devi wife of Ram Mahto of village Peraidih, P.S. Tamar,
District-Ranchi (Dead and substituted vide order dated
15.12.2022)
3.aBadalKumari, daughter of Late Mini Devi, resident of Village
& P.O. Baredih, P.S. Tamar and District-Ranchi.
2
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3.b Bhuski Devi, W/O: FuchiMahto, D/O Late Mini Devi, resident
of Village-Nawadih, P.O. Baburamdih, P.S. Tamar, District-
Ranchi.
3.c Samla Devi, W/O MaheshwarMahto, D/O: Mini Devi, resident
of Village-Adelpiri, P.O. Lungtu, P.S. Tamar, District-Ranchi
3.d JaanmanjayMahto, Son of RamuMahto, Mother of Mini Devi,
resident of Village & P.O. Baredih, P.S. Tamar, District-
Ranchi.(Dead and substituted vide order dated 08.07.2024)
3.d.i Saraswati Devi, Daughter of Late JanmenjayMahto, Wife of
Sandeep Mahto, Residents of Village-Adelpiri, P.O.- Lungtu, P.S.
Tamar, District-Ranchi.
3.d.ii Rajkumari Devi, Daughter of Late JanmenjayMahto, Wife of
JagdisMahto @ Sanjay, Resident of Village- Baridih, P.O. Parasi,
P.S. Tamar, District-Ranchi.
3.e Puna Ram Mahto, Son of RamuMahto, Mother of Mini Devi,
resident of Village & P.S. Baredih, P.S. Tamar, District-Ranchi
3.f LakhindraMahto, Son of RamuMahto, Mother of Mini Devi,
resident of Village & P.O. Baredih, P.S. Tamar, District-Ranchi
4. SheonathMahto(Dead and substituted vide order dated
15.12.2022)
4.a UpendraMahto, Son of Late ShivnathMahto, resident of
Village- Nawadih, P.O.- Baredih, P.S. Tamar, District-Ranchi
4.b Kasuna Devi, Wife of DurgaCharanMahto, D/O Late
ShivnathMahto, resident of Village- Patsaydih, P.O. Lungtu, P.S.
Tamar, District-Ranchi
4.c BhagirathMahto, Son of Late ShivnathMahto, resident of
Village-Nawadih, P.O- Baredih, P.S. Tamar, District-Ranchi.
5. DeonathMahto
Both sons of late DhirjaMahto residents of village-Nawadih, P.S.-
Tamar, District-Ranchi.
6. Ram RatanMahto
7. Jai Singh Mahto
Both sons of Late DhirjaMahto residents of Village-Nawadih, P.S.-
Tamar, District-Ranchi.
8. Sabi Devi wife of LakhanMahto of village-Janumpiritola,
Lupungdih, P.S.- Tamar, District-Ranchi.
9. Urmila Devi widow of BisanMahto, residents of Village-Ulilohar,
P.S.- Tamar, District-Ranchi.
... ... Defendants/Respondents/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. K.K. Ambastha, Advocate
For the Respondents : Mr. Harendra Kr. Mahato, Advocate
: Ms. Ahalya Mahato, Advocate
: Ms. Jyotsna Mahato, Advocate
---
CAV on 10.09.2025 Pronounced on 12.09.2025
2025:JHHC:27885
1. This appeal has been filed against the judgment dated
17.06.1995 (decree signed on 23.06.1995) passed by the learned IVth
Additional Judicial Commissioner, Ranchi in Title Appeal No. 97/91
TR No. 33/92 affirming the judgment dated 13.09.1991 (decree signed
on 28.09.1991) in Partition Suit No. 248 of 1985 passed by learned
Sub-Judge, Khunti.
2. The learned trial court had dismissed the partition suit and the
judgment of the trial court was affirmed by the learned 1 st appellate
court. Accordingly, the plaintiffs are the appellant before this Court.
3. This appeal was admitted for final hearing vide order dated
03.01.1996 by framing the following substantial question of law:-
"Whether the courts below have erred in holding partition
by metes and bounds amongst the parties on the basis of
entries in the records of right whereas some of the
properties stood recorded jointly as well as separately in
the names of the parties."
4. Learned counsel appearing on behalf of the respondents at the
threshold has submitted that the substantial question of law so framed
is not a substantial question of law inasmuch as both the courts have
appreciated the materials on record and have come to a definite
conclusion that there has been partition prior to cadastral survey. He
submits that whether there was a previous partition or not is
essentially a question of fact and therefore, no substantial question of
law is involved in this case.
5. However, the parties have advanced their arguments on merits.
6. The suit was filed seeking half share of the suit property
through partition and the parties are hindu governed by Mitakshara
School of Hindu law. The genealogy of the parties is not in dispute.
The suit property as per schedule to the plaint is of Khata No. 2 of
village Nawadih P.S Tamar Ranchi plot no.
93,361,391,384,70,71,72,73,88 and 89 total area 3.97 decimal and of
Khata no. 168 of village Paraidih P.S. Tamar Ranchi plot no.
2023,2024,2025,2026, 2027,2029,2043,2044,2046 and 2049 total area
2.87 decimal.
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7. It is not in dispute that the common ancestors were one Khudia
Mahto who died before cadastral survey leaving behind two sons
namely Raghunath Mahto and Baji Mahto. The learned counsel has
submitted that the heirs of Raghunath Mahto were the defendants in
the suit and the heirs of Baji Mahto are from the side of the plaintiffs.
Raghunath Mahto and Baji Mahato died before Revisional Survey
Operation; Raghunath Mahato died leaving behind his son Chamru
Mahato, Balka Mahto and Dhiraj Mahto while Baji Mahato died
leaving behind his sons Ganesh Mahto and Paresh Mahto; Paresh
Mahto also died before Revisional Survey leaving behind his son
Binda Mahto. In course of time the sons of Raghunath Mahto and Baji
Mahto died one after another leaving behind their sons. The plaintiffs
and defendants were the grand sons of Raghunath Mahto and Baji
Mahto.
8. It was the case of the plaintiffs that since the son of Raghunath
Mahato was elder and Chamru Mahto was the eldest son of Raghunath
Mahto, he was the karta of the of the joint family consisting of
Raghunath Mahto and Baji Mahto. Revisional Survey record of right
was jointly prepared in respect of the suit property in the name of heirs
of Raghunath Mahto and Baji Mahto (some of the land was recorded
jointly while some were recorded separately in the name of sons of
Raghunath Mahto). As per the case of the plaintiffs, after expansion of
the family, mess and cultivation on some land was being done
separately for convenience but the family land and property were still
joint and there has been no partition amongst the family members by
metes and bounds.
9. The defendant Nos. 1 to 3 and 5 to 9 appeared and contested the
suit while defendant Nos.4, 10 and 11 did not appear. Hence the suit
was heard ex-parte against them.
10. It was the specific case of the contesting defendants was that
the ancestors of the parties had partitioned the land long before
cadastral survey and accordingly to that it was recorded in the
cadastral survey and there was no unity of title and possession among
the parties. It was further case that even in the revisional survey
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record the tenants were recorded according to their share with respect
to revisional survey Khata No 2 in village Nawadih. Further case of
the contesting defendants was that they had dealing with the land of
khata No.2 and they have exchanged plot No. 384 with Rameshwar
Mahto and others of village Nawadih. It was denied that Raghunath
Mahto was karta of the joint family and Chamru Mahto was the karta
of the joint family and it was their case that the ancestors of the parties
have already partitioned their land long before cadastral survey and
they were holding the lands according to that partition. It was asserted
that the plaintiffs have no share in the suit land and thus the plaintiffs
have no valid right, title and interest. With respect to land of revisional
survey Khata No. 168 of Village Paraidih, it was their case that it was
not ancestral property of parties rather these lands were the self-
acquired properties of Raghunath Mahto, the ancestor of the
defendants.
11. The learned trial court framed as many as 6 issues but
considering the substantial question of law the issue no. (IV) and (v)
are relevant for this case which are :-
Whether there was unity of title and possession between the
parties in the suit land?
AND
Whether there was a partition by metes and bounds in the
family of the parties among their ancestor before C.S. and
since then parties are holding the lands of their shares or
parties are still joint and no partition by metes and bounds
have been done?
12. The plaintiff side has adduced some oral as well as some
documentary evidences which are as follows:-
Oral evidence on behalf of plaintiffs
P.W.1 Chamru Mahto
P.W.2 Sodrai Mahto
P.W.3 Banwari Mahto
P.W.4 Niranjan Pramanik
P.W.5 Jagdanand Pandey
P.W.6 Harihar Mahto
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Documentary Evidence on behalf of defendants.
Exhibit 1 Zamindary rent receipt
Exhibit 2 Report of Survey Knowing
Pleader Commissioner
Exhibit 3/A CS Khatiyan of Khata No.5
Exhibit 3/B CS Khatiyan of Khata No.54
Exhibit 4 CC of RS Khata No.2
Exhibit 4/A CC of RS Khatiyan of Khata No.
Exhibit 5 CS Map of Village Nawadih,
P.S. Tamar, District-Ranchi
Exhibit 5/A RS Map of Village Nawadih,
P.S. Tamar, District-Ranchi
13. The defendants side has adduced some oral as well as some
documentary evidence which are as follows:-
Oral evidence on behalf of Defendants
D.W.1 Karam Singh Mahto
D.W.2 Ghanshyam Mahto
D.W.3 Doman Mahto
D.W.4 Shivaram Mahto
D.W.5 Mohan Lal Mahto
D.W.6 Jaysingh Mahto
D.W.7 Lohra Ram Ganjo
Documentary Evidence on behalf of defendants.
Exhibit A to A/2 Zamindari Rent Receipts
Exhibit B Registered exchanged deed
executed by Doman Mahto and
others in favour of Rameshwar
Mahto.
Exhibit A/3 to A9 Zamindari Rent Receipts
Exhibit C to C/3 True Map R.S. and C.S.
Exhibit D CC of RS Khatiyan of Khata No.
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Exhibit D/1 CC of CS Khatiyan of Khata No.
Exhibit D/2 CC of CS Khatiyan of Khata No.
229 & 230
Exhibit D/3 CC of CS Khatiyan of Khata No.
231 & 232
Exhibit E RS Khewat of 17/1 to 17/12 of
Village Piraidih
Exhibit F to F/9 Canal Parcha of Village Peraidih
14. Findings of the learned trial court is as under:-
10. From the oral as well as documentary evidences of both the
parties as discussed above it is apparent that both the parties
are separate in mess cultivation and dealings. Documents filed
by the plaintiffs and defendants shows that some lands were
recorded separately in the name of parties in both CS and RS
operation but some land were recorded joint showing separate
possession of both the parties. This shows that there was
partition and parties were living separately. Not only this, both
the parties have been recorded separate khewats. Had they
been joint. There was no question of opening separate khewat
in their names. So far oral evidence is concerned, even if the
evidence of witnesses of the defendants leave aside all the
witnesses of the plaintiffs have admitted that both the parties
are separate in mess, cultivation and dealings. In course of
argument the learned lawyer for the plaintiffs submitted that in
the CS operation khata No.8 was recorded jointly in the names
of Raghunath and Baji Mahto, the ancestors of the present
plaintiffs and defendants and even in RS operation khata No.2
of Mouza Nawadih has been recorded in the name of ancestors
both the parties which shows that both the parties are joint and
there was no separation by metes and bounds in the family. He
also argued that it is a presumption that Hindu family is joint
and the party claiming partition in the joint family has to prove
the partition by the definite and cogent evidence but in the
present suit defendants have not mentioned any date of
partition hence merely parties are in separate possession of the
land and in separate mess due to connivance it cannot be said
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that there was partition by metes and bounds in the family. On
the other hand learned lawyer for the defendants argued that no
doubt, there is a presumption that Hindu family is joint family
unless partition is proved but this presumption become weaker
and weaker due to lapse of time generation to generation when
it is proved is in present case that the parties are separate in
mess, cultivation and dealings which even admitted by the
witnesses of the plaintiffs from the time of ancestors of the
parties, it is not necessary nor possible to say exact date of
partition rather the evidence of partition will be gathered from
the conduct of the parties and circumstances of the case. In the
present case admittedly parties are in separate mess cultivation
and dealings having no concern with each other. They have
recorded separate khewats in R.S. operation and separate land
both C.S. and R.S. operation showing their separate possession
in remarks col, hence merely records of right has been
recorded in the joint names of the ancestors of the parties is not
enough to show that the parties are joint. The argument
advanced by the learned lawyer of the defendants find supports
from the evidence of the defendants and appears more
convincing. In the present case the evidence both oral and
documentary as discussed above, as well as from the facts and
circumstances of the case it appears that partition has already
been taken place in the family of both the parties even prior to
cadastral survey and since then ancestors of both the parties
are living separately in mess, cultivation and dealings. Hence
there is not unity of title and possession between the parties
hence both these main issues are being settled in favour of the
contesting defendants and against the plaintiffs.
15. Before the learned 1st appellate court, the main contention
raised by the plaintiffs was that there was no proof of previous
partition and that the court was required to presume that the hindu
family in question was joint unless rebutted by cogent evidence of
previous partition or by course of conduct indicating previous partition
between the parties. According to appellant, the court below
misdirected itself taking wrong view of the evidence brought on
record and illegally dismissed the plaintiffs suit for partition wrongly
holding that partition of the suit land had taken place long ago which
fact is not evident by course of conduct of the parties.
16. The learned 1st appellate court recorded that the only question
to be determined was whether there has been previous partition
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between the parties indicated and evident by their course of conduct
during long period of time that elapsed before cadastral survey
(1905) and 1985 when the instant suit was instituted.
17. The learned 1st appellate court recorded findings in connection
with properties in village Nawadih from paragraph 13 to 16 as
follows:-
13. As the plaintiffs and defendants are governed by
Mitakshra School of Hindu law, there is presumption of
jointness amongst them unless this presumption is rebutted by
course of conduct of the parties vis-a-vis the suit lands. Now the
plaintiffs-appellants have instituted this partition suit in respect
of lands of two khatas, namely R. S. khata no. 2 of village
Nawadih, measuring 3.97 acres. It is an admitted case of the
parties that lands of khata no. 2 of village Nawadih, PS: Tamar
is jointly recorded in the in the names of Chamu Mahto, Balka
Mahto and Dhirja Mahto sons of Raghunath Mahto (Raghu
Mahto) Dinda Mahto s/o Paresh Mahto and Ganesh Mahto s/o
Baji Mahto, vide Ext.4, revisional khatian of RS Khata No. 2. It
is further admitted case of the parties that lands of RS khata
No. 2 of village Nawadih corresponds to lands recorded in C. S.
Khata no. 8 and lands of CS khata no. 5. The lands of C. S.
Khata No. 8, Ext.3, is recorded jointly in the names of Raghu
Nath Mahto and Baji Mahto. Although the name of Balji Mahto
has been recorded in the name of Baji Mahto alone. The total
area of C. S. Khata No. 8 is 2.05 acres while total area of C. S.
Khata No. 5 is 2.01 acres. These ext. 3 and 3(a) clearly indicate
this suit land of village Nawadih was partitioned between the
two brothers Raghunath Mahto and Baji Mahto long before
cadestral survey operation. There had been none or less equal
apportionment of this land.
14. Now during revisional survey operation, although R. S.
Khata No. 2 (ext. 4) is shown to be jointly recorded the names
of Chanu Mahto, Balka Mahto, Dhirja Mahto sons of
Raghunath Mahto, Binda Mahto S/o Paresh Mahto, Ganesh
Mahto S/o Baji Mahto but possession of Chanu Mahto, Balku
Mahto and Dhirja Mahto have been shown jointly over 2.04
acres of land. Whereas possession of Ganesh Mahto had been
shown to separately. Thus the total area shown to be in
possession of the descendants of Baji Mahto is 1.93 acres.
These person's Ganesh Mahto and Binda Mahto are
descendants of Baji Mahto which indicates that the sons of Baji
Mahto had also partitioned the lands of Baji Mahto and have
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been in possession separately to the extent of 1.01 acres and
0.92 acres respectively.
15. From the above entties in both C. S. and R. S. record of
rights, it is evident that not only Raghu Nath Mahto and Baji
Mahto were separately holding and possessing their respective
shares of land but their sons also after their death possessed the
said lands separately. So it is evident from survey record of
rights that both parties have been separately possessing the
same blocks of lands of their respective shares for more than 90
years. So from this course of conduct of the parties to the suit
land and the course of conduct of their ancestors, it can safely
be held that there had been partition since before C. S., even
though specific document of such partition is not available on
record.
16. DW1 in paras 1,2 and 4, DW2 in para 7, DW3 in para 2,
DW6 in para 1,2 and 4 have stated that both the parties are in
separate possession over their respective lands. That they are
separate in mess, residence cultivation and dealings. Similarly
PW1 in para 6, PW2 in para 13, PW3 in para 1, PW6 in para
22 have stated that parties are in separate cultivating
possession in respect of the same land which were being
cultivated by their respective predecessor-in-interest. These
oral evidence also proved previous partition."
18. The learned 1st appellate court recorded findings in connection
with properties in village Paraidih with respect to which the partition
was not brought in the common hotch-potch of the present partition
suit from paragraph 17 as follows:
"17. The contesting defendants have produced C.S.
khata No. 229 and 330 (Ext.D/2) of Village Peraidih, showing
separate record of right of Baji Mahto as his bakast and
gairmajurwa land. They have also produced CS khata no. 231
and 232 which are exclusively recorded in the name of
Raghunath Mahto alone as his bakast and gairmajurwa land.
These Exhibits prove the facts that Raghu Nath Mahto and Baji
Mahto had got their separate lands even prior to cadestral
survey. These lands have not been brought in common Hotch-
Potch in the instant partition suit. The contention of defendants
have also filed the khewat of Revisional survey Ext. E to show
that the parties to the suit have also got other lands recorded in
Ext. E in Khewat No. 17/3 to 17/6 to show that the parties have
got their separate lands also."
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19. The learned 1st appellate court recorded findings in paragraph
18 in connection with exhibit B and recorded that it showed separate
dealing of the parties with respect to their separate lands and also
referred to the judgment passed by the Hon'ble Patna High Court
reported in AIR 1991 Patna 95. Paragraph 18 is quoted as follows: -
"18. The learned lawyer for the plaintiffs-appellants has
vehemently argued that the contesting defendants have not
produced any oral evidence to show that the partition had
taken place in their presence at a particular point of time. The
learned lawyer for the contesting defendants has on the other
hand submitted that partition had taken place at such a remote
point of time that it can not be expected that persons before
whom the partition had taken place would be living at this
point of time. In such circumstances, the entties made in the
record of right and course of conduct of the parties have got to
be considered to show that partition had already taken place
before the cadestral survey. The contesting defendants have
also produced registered exchange deed (ext.B) dated 6.7.85,
showing separate dealings of the parties in respect of their
separate lands. This deed is of prior date to the date of filing of
the suit. The learned counsel for the respondent relied on AIR
1991 Pat 95. Their lordship observed, in the instant case not
only before the C. S. settlement operation, the parties are in
separate possession, separate mess, separate residence, and
separate cultivating possession of the lands in question, there
had also been separate, dealings of the properties amongst the
plaintiffs interse. Therefore, the conclusion of the trial court
that there had been no partition by metes and bounds and as,
such the plaintiffs were entitled to decree for partition was
illegal.
20. The learned 1st appellate court recorded findings in connection
with properties in R.S Khata no. 168 of village Paraidih in paragraph
18 and held that it was the exclusive property of the contesting
defendants and there was no unity of title and possession amongst the
parties with respect to this property. The paragraph 18 is as under: -
18.Now with regard to lands of RS khata no. 168 the case of
contesting defendants is that Raghu Nath Mahto had separate
Keyami land in village Nawadih. It is recorded as such in C.S
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Khata No. 54 (Ext.3/B). C.S. record of right was finally
published in 1905. The possession of Raghunath Mahto with
regard to land of C. S. khata no. 54 was shown as
gairdakhalkar for the last six years. This means that although
Raghunath Mahto was in possession for six years yet he had
acquired the status of occupancy raiyat. Therefore he had been
recorded as gardakhalkar that is as non-occupancy raiyat. It
was not the ancestral land but a self acquired one. According to
contesting defendants, Raghunath Mahto exchanged the lands
of C. S. Khata no. 54 of Village- Nawadih. With the lands of C.
5. Khata no. 273 of village Peraidih corresponding to R.S knata
no. 158. This land of C.S khata no. 273 no. to R. S. khata no.
168 belonged to Abhi Ram Mahto. So, after exchange Abhi Ram
Mahto came in possession of the lands of C. S. khata no.54 in
R. S. khata no. 81. This R. S, khata no. 81 has been recorded in
revisional survey in the name of Karam Singh Mahto s/o Abhi
Ram Mahto as Abhiram Mahto had died prior to RS. Similarly
lands of C. S. Khata No. 273 to R. S. Khata No. 168 was
recorded exclusively in the names of Chanu Mahto, Balka
Mahto and Dhirja Mahto sons of Raghu Nath Mahto. Dhirja
Mahto separated from his brothers Chamu Mahto and Balka
Mahto. Therefore, Dhirja Mahto was shown to be in separate
possession of 0.91 acres and Chamu Mahto and Balka Mahto
were jointly shown to be in possession of 1.96 acres of lands.
The total area of the lands of this Khata is 2. 87 acres. The
descendants of Baji Mahto (Plaintiffs) have not been recorded
in the lands of khata no. 168. Their possession has also not
been shown in the record of rights. The plaintiff, examined as
P.W.6 claims to be in possession over the lands of khata no.
168 and is claiming of paying canal tax for which he has not
produced any document in support of his claim whereas
contesting defendants have produced canal parcha in respect of
the lands of khata no. 168. They are Ext. F series. These
documents clearly prove that the contesting defendants are in
exclusive possession over the lands of khata no. 168. Therefore
lands, of khata no. 168 are not available for partition and there
is no unity of tile and possession among the parties to the suit in
respect of the lands of khata no. 168."
21. The defendants had relied upon the judgement reported in AIR
1971 Patna 215 and AIR 1962 SC 287 before the learned 1st appellate
court.
22. The learned 1st appellate court held that the learned trial court
had rightly decided issue no. (iv) and (v) and while dismissing the
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appeal held in paragraph 20 that from the facts there was irresistible
inference and finding would be that there had been previous partition
of the suit land before cadestral survey and that not only Raghu Nath
Mahto and Baji Mahto were separate in all respects but partition had
also taken place among their descendants inter-se. So, it will be totally
unjustified and illegal to reopen partition.
Arguments of the plaintiffs (appellants)
23. Learned counsel for the appellants while assailing the
impugned judgment has submitted that there was no proof of previous
partition. He has further submitted that even the date of partition was
not mentioned in the written statement of the defendants nor any such
date of partition was placed on record through oral or documentary
evidence by the defendants.
24. Learned counsel for the appellants has also submitted that
merely because the parties were separated in mess and cultivation the
same by itself is not a conclusive proof of partition. He has also
submitted that there is a presumption in connection with jointness in
Hindu family and the onus was on the defendants to prove partition
through proper evidence. The learned counsel has accordingly,
submitted that the findings of both the courts with regard to previous
partition is not based on cogent evidence and therefore, the substantial
question of law is fit to be answered in favour of the appellants. The
learned counsel has relied upon judgment passed by the Hon'ble Patna
High Court in the case of Dinanath Yadav vs. Kusum Devi reported in
2000 (2) PLJR 522 paragraph 11 and has submitted that the onus was
heavy on the defendants to prove previous partition and has submitted
that in a partition suit separation of parties in mess and business
cannot be treated as a proof of complete partition.
25. The learned counsel has relied upon judgment passed by
Hon'ble Patna High Court in the case of Deoki Mallah vs. Surji
Mallahain reported in 1999 (1) PLJR 199 equivalent citation 1998
Supreme (Pat) 597 and has referred to paragraph 13 and 14 thereof to
submit that separate in mess and separate cultivation amongst the co-
sharer does not mean that there was partition by metes and bounds. He
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has also submitted it has been held that entries in the revenue record
cannot prove partition or separation. The learned counsel has
submitted that the learned trial court as well as the learned 1st appellate
court has primarily based their findings on the basis of the entries
made in revenue record and therefore, the entire approach of both the
courts is fallacious and certainly a substantial question of law which
has been framed by this Court is fit to be answered in favour of the
appellants.
Arguments of the defendants (respondents)
26. Learned counsel appearing on behalf of the respondents has
vehemently opposed the prayer. The learned counsel has submitted
that the findings recorded by the courts is that the partition had taken
place prior to cadastral survey and cadastral survey had taken place
way back in the year 1905. He submits that therefore, there was no
question of any person being examined who was alive way back in the
year 1905. He has submitted that this aspect of the matter has been
taken note of by the learned courts and the learned courts have
thereafter, dealt with the various entries in the revenue records and
also considered the various oral evidences placed on record to come to
a finding that there was a previous partition prior to cadastral survey.
The learned counsel submits that with the passage of time specific
date of partition was not placed on record but there was sufficient
material placed on record to show that there was previous partition
prior to the cadastral survey. The learned counsel has submitted that it
was admitted fact on record that the parties were separated in mess,
cultivation and also dealing with the property.
27. Learned counsel for the respondents submits that each and
every entry made in the record of rights has been taken care of by both
the courts along with the oral evidences on record to come to a finding
that there was previous partition between the two brothers namely
Raghunath Mahto and Baji Mahto prior to cadastral survey record. He
submits that the substantial question of law otherwise also is fit to be
answered in favour of the respondents when seen in the light of the
facts and circumstances of this case.
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28. The learned counsel for the respondents has also submitted that
the judgment cited by the appellants does not apply to the facts and
circumstances of this case.
Findings of this Court.
29. Before proceedings to decide the case in the light of the facts of
this case, it would be relevant to refer to the judgements which have
been referred in the impugned judgement and also the judgements
cited by the learned counsel for the appellants during the course of
hearing of this case. They are: -
I. AIR 1962 SC 287,
II. AIR 1971 Patna 215
III. AIR 1991 Patna 95
IV. 1999 (1) PLJR 199 equivalent citation 1998 Supreme (Pat)
30. In the judgement passed by Hon'ble Supreme Court reported in
AIR 1962 SC 287 (Bhagwan Dayan and Ors. Vs. Mst. Reoti Devi)
which has also been referred to in the impugned judgement, the suit
was for a declaration that the properties were the absolute property of
the plaintiffs. The suit was decreed and the High Court in 1 st appeal
set aside the judgement and consequently the plaintiff was the
appellant before the Hon'ble Supreme Court. The Hon'ble Supreme
Court in paragraph 16 of the judgement held that every Hindu family
is presumed to be joint unless the contrary is proved but this
presumption can be rebutted by direct evidence or by course of
conduct. It has also been observed that in case of old transaction when
no contemporaneous documents are maintained and when most of the
active participants in the transaction have passed away, though the
burden still remains on the person, who asserts that there was
partition, it is permissible to fill up the gaps more readily by
reasonable inferences than in a case where evidence is not obliterated
by passage of time. The Hon'ble Supreme Court thereafter recorded in
paragraph 20 of the said judgement that evidence of the witness
showed that the brothers were living separately and with respect to
ancestral property the name of different members of the family were
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entered in government accounts against different portions of the
property. The court also observed that there was no dispute amongst
the brothers with respect to income from ancestral land. The Hon'ble
Supreme Court observed that the conduct of the parties for about 50
years was consistent with their partition rather than their joint status
and on the whole and on consideration of the materials placed before
the court it could not be said that the finding given by the learned trial
court was not supported by evidence and accordingly the Hon'ble
Supreme Court accepted the finding of the learned trial court that there
has been previous partition.
31. In AIR 1971 Patna 215 it has been held that separation in food
and residence for a long time amongst brothers of a Hindu Family,
independent transaction of property, separate possession and
enjoyment of property are by themselves not conclusive to prove the
partition but the cumulative effect of such facts may show that there
has been partition between the brothers during their life time. A
reference was made to the judgement of Privy Council reported in
AIR 1930 PC 93.
32. In the judgement passed by Hon'ble Patna High Court reported
in AIR 1991 Pat 95 (Radhamoni Bhuiyanin and Ors. Vs. Dibakar
Bhuiya and others) which has also been referred in the judgement
passed by the learned 1st appellate court, the plaintiff filed suit for
partition and the defendants claimed that the properties were not
ancestral properties of the parties. The learned trial court had decided
that there was no partition by metes and bound and decreed the suit,
the defendant was in appeal before the High Court. It was admitted
that the parties were separated in mess and cultivation and from
survey khatian, Exhibit C and C/1 separate possession of the party was
noticed , Exhibit C was the khatian with respect to cadastral survey
operation, which took place in the year 1911. The court recorded that
the trial court proceeded on the basis that there is presumption of
jointness with respect of Hindu family and further proceeded on the
basis of that land allotted to share and the plaintiffs were of inferior
quality than that of the defendants and the learned trial court found
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that there was disparity in the possession of the parties which could
not be reconciled. The High Court observed that such approach of the
trial court was not correct. The court also observed that even in a case
where partition had taken place and if share allotted to one of the
parties is unconsciously disproportionate it is open to the court in a
given case to reopen partition but in such a case, the partition would
be admitted and reopened at the instance of the plaintiff. The court
considered the oral evidence to come to a finding that the plaintiffs
admitted separation of two families for long time at least since
cadastral survey operation. The court observed further that not only
the parties were in separate possession for a long time i.e. for a period
of 70 years but they were also separate in mess and having separate
residences for more than 70 years. The learned court further observed
that it is well settled that although there is presumption of jointness in
a Hindu family to that presumption is stronger when the parties are
full brother, but such presumption gets weaker and weaker as time
passes and parties in 3rd and 4th generation are found to be in separate
possession of the land. The court observed in the said case that not
only from before the cadastral survey settlement operation, the parties
were in separate possession, separate mess, separate residence and
separate cultivating possession of the land in question, but it was also
shown from the exhibits that there had also been separate dealings of
the property amongst the plaintiffs inter-se. In this background, it was
held that the defendants were able to prove that there was previous
partition and the judgement of the learned trial court was set aside.
33. In the judgement passed by the Hon'ble Patna High Court
reported in 1998 Supreme (Pat) 597 (Deoki Mallah Vs. Surji
Mallahain), the plaintiff asserted the during the lifetime of common
ancestor, the predecessor in interest of the plaintiff got his share
totally separated. The defendant contested denied separation of the
predecessor in interest of the plaintiff and it was asserted that there
was just a family arrangement for convenience on mess and
possession and were half and half in possession of the suit property.
The suit was decreed and the defendant was in appeal before the High
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Court. In the judgement it has been held that separate in mess and
separate cultivation amongst the co-sharers do not mean that there was
partition by metes and bound or separation of one or the coparceners
from the ancestral property. It was also held that notings of kabjawari
in revenue records do not prove separation or partition. It only gives
an analogy that there was separate cultivation or possession by the
person in whose favour kabjawari has been recorded and that mere
entries in revenue records cannot prove partition or separation. It can
only come as an aid if there is other cogent evidence regarding
separation or division of property. On facts, in the said case in the
absence of any cogent evidence from the side of the plaintiffs
regarding separation or division of property, the appeal was allowed.
34. In the judgement passed by Hon'ble Patna High Court reported
in 2000 Supreme (Patna) 129 (Dinanath Vs. Kusum Devi), the trial
court held that the plaintiffs had failed to prove the jointness in the
family inspite of the fact that there was no convincing evidence on
behalf of the defendants showing partition. The question of onus to
prove partition was raised and in this background, the Court observed
that there is presumption of jointness between close agnates and it is
duty of the parties who claims partition to prove this fact. The court
also recorded that it is true that there is presumption of jointness in
Hindu Mitakshara family, but at the same time, it is also clear that
presumption of jointness becomes weaker and weaker with the
passage of time and presumption of jointness between two brothers is
greater than the presumption of jointness between two cousin brothers
or the second cousin brothers.it has been held that in a partition suit,
mere separation of parties in mess and business cannot be treated as
proof of complete partition and the appeal was allowed.
35. The present case has to be viewed from the aforesaid position
of law as it appears from the judgements cited by the appellants or
found mentioned in the impugned judgements.
36. In the present case the 4th generation (taking the common
ancestor as the 1st generation) was seeking partition and the common
ancestor was Khudia Mahto. The suit property is of two khatas. It was
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the case of the plaintiffs that the suit property is still joint and not
partitioned by metes and bound. According to the plaintiffs, the
common ancestor Khudia Mahto, died prior to cadastral survey (CS)
leaving behind his two sons namely Raghu Mahto and Baji Mahto,
who were recorded in cadastral survey (CS) record of right jointly in
respect of some plots and also separately in respect of other plots.
According to the plaintiffs, Raghu Mahto being the karta of the joint
family got cadastral survey (CS) prepared. The plaintiffs also stated
that the two brothers died before revisional survey (RS) and in course
of time Raghu Mahto and Baji Mahto also died leaving behind their
sons who are the plaintiffs and defendants in the partition suit. The
descendants of Baji Mahto are the plaintiffs and descendants of Raghu
Mahto are the defendants. It was further case of the plaintiffs that after
expansion of family, the members began to live separately in mess,
residence and cultivation for the sake of convenience although there
has been no partition amongst them with respect to the suit property.
The plaintiffs alleged that some of the defendants had become
dishonest and they have been raising unnecessary dispute in a matter
of cultivation of joint family property and in spite of request, they
refused partition and therefore the suit was filed.
37. The case of the contesting defendants was that land of khata
no.2 of village Nawadih was partitioned long back before cadastral
survey (CS) and in terms of that partition, lands allotted to respective
parties were recorded in cadastral survey (CS) Khata. The same state
of things continued with respect to this land in the correspondent
revisional survey (RS) record of right. after partition, the parties were
separated in mess, residence and cultivation and they have dealt with
the land of their share of khata no.2. They exchange plot no.384 with
Rameshwar Mahto and others of village Nawadih. It was their further
case that with respect to RS khata no.168 of village Peraidih, the land
was not ancestral property of the party but was acquired by Raghu
Mahto, the ancestor of the defendants vide instrument of exchange
with one Abhiram Mahto the landlord of the village. The details and
the manner of exchange was also provided. It was pleaded that
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Raghunath Mahto had his own raiyati land i.e. land of khata no.54 in
village Nawadih and Raghu Mahto exchanged his land of CS Khata
no.54 with the land of CS Khata No.273 of Abhiram Mahto. It was
pleaded that lands of CS Khata No.273 corresponding to land of RS
khata no.168 was therefore recorded in the name of Raghu Mahto.
38. The learned trial court dismissed the suit by recording a finding
that there was previous partition prior to cadastral survey (CS). The
learned trial court recorded a clear finding that in the fact of this case
it was not necessary nor possible to say the exact date of partition,
rather the evidence of partition would be gathered from the conduct of
the parties and circumstances of the case. The court also recorded that
in the present case, admittedly the parties were in separate mess,
cultivation and belonging having no concern with each other; they
have recorded separate khewat in RS operation and separate land both
CS and RS operation showing their separate possession in remarks
column and held that merely record of rights has been recorded in
joint names of ancestors of the parties, was not enough to show that
the parties were joint. The learned trial court also recorded that the
evidence of the defendants was more convincing. The court further
recorded that in the present case, evidence both oral and documentary
showed that the partition had already taken place in the family of both
the parties even prior to cadastral survey and since then ancestors of
both the parties were living separately in mess, cultivation and
dealings and hence there was no unity of title and possession between
the parties.
39. The specific case of the plaintiffs before the 1 st appellate court
was that there was no proof of previous partition and that the court
was required to presume that the Hindu family in question was joint
unless rebutted by cogent evidence of previous partition or by the
course of conduct indicating previous partition between the parties.
The learned 1st appellate court framed the only question for
determination as to whether there had been previous partition
between the parties indicated and evident by their course of conduct
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during long period of time that elapsed before cadastral survey 1905
and 1985 when the instant suit was instituted.
40. The learned 1st appellate court accepted that there is
presumption of jointness amongst them unless this presumption is
rebutted by course of conduct of the parties vis a vis that suit lands.
The 1st appellate court recorded that the land of RS khata no.2 of
village Nawadih was corresponding to land recorded in CS Khata no.8
and land of CS khata no.5. By referring to Exhibit 3 and 3(a), the
learned court came to a finding that the suit land of village Nawadih
was partitioned between the two brothers Raghunath Mahto and Baji
Mahto, long before cadastral survey operation and there has been
more or less equal apportionment of this land. The learned court came
to a finding on the basis of entries made in CS and RS record of rights
that not only Raghunath Mahto and Baji Mahto were separated in
possession but their sons also possessed the land separately. The
learned court recorded that the defendants also produced the registered
deed of exchange dated 06.07.1985 (Exhibit B) showing separate
dealings of the parties with respect to their separate lands and this
deed was prior to filing of the suit.
41. The court recorded that it was evident from survey record of
right that both the parties have been separately possessing the same
blocks of land of their respective share for more than 90 years and
therefore from this course of conduct of the parties to the suit land and
the course of their conduct of their ancestors, it could be safely held
that there has been partition since before cadastral survey (CS) even
though specific document of such partition is not available on record.
42. The learned court also considered the CS Khata no.229 and 230
(Exhibit D/2) of village Peraidih produced by the defendants. They
had also produced the khata of 231 and 232. The learned court
recorded that these exhibits prove the fact that Raghu Mahto and Baji
Mahto, had also got their separate land even prior to cadastral survey.
These lands were not brought in common hotch-potch in the present
partition suit. The defendants had also filed their khewat of revisional
survey (Exhibit E) to show that the parties to the suit had already got
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the other lands recorded in Exhibit E in khewat no.17/3 to 17/6 to
show that the parties have got their separate land.
43. With respect to the other RS khata no.168 the second property
which is under RS Khata no.168, the learned court considered the case
of the contesting defendants that it was the separate property of
Raghunath Mahto and that it was not the ancestral property. The
learned court after considering the materials held that the contesting
defendants were in exclusive possession of the land of khata no.168
and held that the property in khata no.168 was not available for
partition and there was no unity of title and possession amongst the
parties to the suit with respect to khata no.168. The learned 1 st
appellate court ultimately concluded that the learned trial court was
justified in all respect that there was partition inter-se and therefore
there was no justification to re-open partition.
44. The learned 1st appellate court also considered the evidence of
the witnesses of the defendants and observed that they in their
evidences had stated that there was separate in mess, residence,
cultivation and dealings. Similarly, the evidence the witnesses of the
plaintiffs also stated that the parties were in separate cultivating
possession with respect to the same land which were being cultivated
by their respective predecessor in interest. Upon appreciating the oral
evidences, the learned court came to a finding that the oral evidence of
the plaintiffs and the defendants also proved previous partition.
45. This Court finds that there are concurrent findings recorded by
both the courts that the parties were separated in possession of mess,
residence, cultivation and also dealing with property separately.
Further on the basis of oral evidence of both the parties, it was held
that there was previous partition.
46. From perusal of the judgements discussed above , this Court is
of the considered view that there can be no dispute that merely on the
basis of entries made in record of rights, it cannot be said that there
was previous partition but certainly such fact is a material fact and in
order to come to a finding of previous partition, there has to be other
materials on record to support the findings of previous partition. There
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is further no doubt that though there is presumption with respect to
jointness of Hindu family unless contrary is proved, but this
presumption can be rebutted by direct evidence or by course of
conduct. There is further no doubt that with the passage of time, the
direct evidence may not be available and it is the course of conduct of
the parties, which is required to be examined to come to a conclusion
as to whether there was previous partition or not. It is also well settled
that presumption of jointness in Hindu family is stronger where the
parties are full brothers but such presumption gets weaker and weaker
as time passes and parties who are in 3rd and 4th generation are found
to be in separate possession of land.
47. This court is of the considered view that this judgement
reported in 1998 Supreme (Pat) 597, which has been discussed above,
does not apply to the facts and circumstances of this case, inasmuch as
in the present case, there has been cogent materials placed on record
apart from mere entries in record of right regarding separate
possession. This has been fully discussed above.
48. The aforesaid judgment reported in 2000 Supreme (Patna) 129,
which has been discussed above , does not help the appellants in any
manner as in the present case the 4th generation (taking the common
ancestor as the 1st generation) was seeking partition and the findings
of the learned courts are based on appreciation of martials on record,
both oral and documentary to come to a finding of partition before
cadastral survey, that is before the year 1905.
49. This court is of the considered view that the judgement reported
in AIR 1962 SC 287 (Bhagwan Dayan and Ors. Vs. Mst. Reoti Devi)
and judgment reported in AIR 1991 Pat 95 (supra) is fully applicable
to the facts and circumstances of this case as the totality of materials
placed on record, both oral and documentary and also the conduct of
the parties were enough to come to a conclusion of previous partition
as back as in the year 1905[that is, prior to cadastral survey (CS)] by
both the courts. Though some of the land of khata number have been
jointly recorded but the possession has been shown separately and it
has also been proved that the parties were separate in all respect and
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that there was previous partition prior to 1905. To come to these
findings the learned courts have taken into consideration both oral and
documentary evidences placed on record. In view of the aforesaid
facts and circumstance of this case, this court is of the considered view
that the learned courts have not erred in holding that there was
previous partition prior to cadastral survey (CS) of the year 1905.
50. The substantial question of law is accordingly decided against
the appellants and in favour of the respondents.
51. Accordingly, this 2nd appeal is dismissed.
52. Pending interlocutory application, if any, is dismissed as not
pressed.
53.Let this judgement be immediately communicated to the court
concerned through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Saurav/-
