Patna High Court
Ranjana Devi @ Ranjan Devi And O vs Shanti Devi And Ors on 26 May, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.238 of 2011
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1. Ranjana Devi @ Ranjan Devi D/o Late Jagdish Bhagat, w/o Ram Iqubal
Bhagat, R/o Khesar, P.S. Belhar, Dist. Banka.
2. Chunni Devi D/o Late Jagdish Bhagat, W/o Santosh Jaiswal R/o Mohalla
Deepnagar, P.S. Adampur, Distt. Bhagalpur
3. Renu Devi D/o Late Jagdish Bhagat, W/o Kanhaiya Prasad Bhagat R/o
Belhar, P.S. Belhar, Dist.- Banka
4. Deji Kumari D/o Late Jagdish Prasad Bhagat, R/o Village- Khesar, P.S.-
Belhar, Distt.- Banka
5. Sajjan Devi D/o Late Jagdish Prasad Bhagat, W/o Madan Prasad Bhagat
Village and P.S. Pathargama, Distt.- Goda
6. Manoj Kumar Bhagat S/o- Late Jagdish Prasad Bhagat, R/o Village- Khesar,
P.S.- Belhar, Distt.- Banka
7. Smt. Tara Devi, W/o Late Jagdish Prasad Bhagat, R/o Village- Khesar, P.S.-
Belhar, Distt.- Banka
... ... Appellant/s
Versus
1.1. Shanti Devi W/o Ram Nath Bhagat, R/o Village Khesar, P.S. Belhar, Distt.
Banka, presently residing at Govindpur, P.S. Govindpur, Distt. Jamshedpur
(Jharkhand).
2. Bishwanath Bhagat, S/o Late Mahadeo Bhagat, Resident of Village Khesar,
P.S. Belhar, Distt. Banka.
3. Most. Lalita Devi, D/o Late Yogendra Bhagat and W/o Surendra Jaiswal,
R/o Barsanagar Zone No. 3, Near Kali Mandir, Jamshedpur Jharkhand
4.1. Mt. Jai Mala Devi, Wife of Late Rajendra Bhagat, Resident of Village -
Khesar, Post Office - Khesar, Police Station Belhar, District- Banka Pin
Code 813207, at present residing at village and Post Office - Baunsi, Police
Station - Baunsi, District- Banka (Bihar) Pin Code - 813104.
4.2. Nadan Kumar Bhagat, Son of Late Rajendra Bhagat, Resident of Village -
Khesar, Post Office - Khesar, Police Station Belhar, District- Banka Pin
Code 813207, at present residing at village and Post Office - Baunsi, Police
Station - Baunsi, District- Banka (Bihar) Pin Code - 813104.
4.3. Beauty Kumari, D/o Late Rajendra Bhagat, Resident of Village - Khesar,
Post Office - Khesar, Police Station Belhar, District- Banka Pin Code
813207, at present residing at village and Post Office - Baunsi, Police
Station - Baunsi, District- Banka (Bihar) Pin Code - 813104.
4.4. Rimjim Kumari, D/o Late Rajendra Bhagat, Resident of Village - Khesar,
Post Office - Khesar, Police Station Belhar, District- Banka Pin Code
813207, at present residing at village and Post Office - Baunsi, Police
Station - Baunsi, District- Banka (Bihar) Pin Code - 813104.
5. Sanjeev Kumar Bhagat, S/o Ram Nath Bhagat, R/o Village Khesar, P.S.
Patna High Court SA No.238 of 2011 dt.26-05-2025
2/23
Belhar, Distt. Banka.
6. Munna Kumar Bhagat S/o Bishwanath Bhagat R/o Village Khesar, P.S.
Belhar, Distt. Banka.
7. Pintu Kumar Bhagat S/o Bishwanath Bhagat R/o Village Khesar, P.S. Belhar,
Distt. Banka.
8. Mintu Kumar Bhagat S/o Bishwanath Bhagat R/o Village Khesar, P.S.
Belhar, Distt. Banka.
9. Arun Kumar Bhagat S/o Late Yogendra Bhagat R/o Village Khesar, P.S.
Belhar, Distt. Banka.
10. Sarita Devi @ Sweety W/o Tunna Bhagat @ Musan Bhagat R/o Village
Khesar, P.S. Belhar, Distt. Banka.
11. Shivani Kumari D/o Tunna Bhagat R/o Village Khesar, P.S. Belhar, Distt.
Banka.
12. Roshan Kumar Bhagat, S/o Yogendra Bhagat R/o Village Khesar, P.S.
Belhar, Distt. Banka.
13. Lalan Kumar Bhagat, S/o Rajendra Bhagat R/o Village Khesar, P.S. Belhar,
Distt. Banka.
14. Pappu Kumar Bhagat, S/o Rajendra Bhagat. R/o Village Khesar, P.S. Belhar,
Distt. Banka.
15. Subodh Prasad Kapri, S/o Baleshwar Prasad Kapri, Village Khesar, P.S.-
Belhar, Distt.- Banka
16. Mostt. Geeta Devi, W/o Late Fani Bhushan Chaudhary R/o Village Asouta,
P.S. Shambhbuganj, Distt. Banka.
17. Munni Kumari, D/o Late Fani Bhushan Chaudhary, R/o Village Asouta, P.S.
Shambhbuganj, Distt. Banka.
18. Chunni Kumari, D/o Late Fani Bhushan Chaudhary, R/o Village Asouta, P.S.
Shambhbuganj, Distt. Banka.
19. Anita Kumari, D/o Late Fani Bhushan Chaudhary, R/o Village Asouta, P.S.
Shambhbuganj, Distt. Banka.
20. Sunita Kumari, D/o Late Fani Bhushan Chaudhary, R/o Village Asouta, P.S.
Shambhbuganj, Distt. Banka.
21. Chhoti Kumari, D/o Late Fani Bhushan Chaudhary, R/o Village Asouta, P.S.
Shambhbuganj, Distt. Banka.
22. Mahesh Kumar, S/o Late Fani Bhushan Chaudhary, R/o Village Asouta, P.S.
Shambhbuganj, Distt. Banka.
23. Umesh Kumar, S/o Late Fani Bhushan Chaudhary, R/o Village Asouta, P.S.
Shambhbuganj, Distt. Banka.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Jitendra Prasad Singh, Sr. Advocate with
Mr. Manish, Advocate
For the Respondent/s : Mr. Shashi Shekhar Dwiwedi, Sr. Advocate with
Mr. Parth Gaurav, Advocate
Mr. Govind Raj Shalu, Advocate
Patna High Court SA No.238 of 2011 dt.26-05-2025
3/23
Mr. Ashutosh Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 26-05-2025
This Second Appeal is directed against the judgment and
decree dated 21.02.2011 passed in Title Appeal No. 60 of 2010 by
the learned Additional District & Sessions Judge, F.T.C-3rd,
Banka, whereby the learned appellate court below has allowed the
appeal filed by the defendants/respondents and set aside the
judgment and decree dated 20.05.2010 passed by Sub-Judge-1,
Banka in Title Suit No. 22 of 1997 and reversed the judgment and
decree passed by the learned trial court.
2. In the present Second Appeal, the following
substantial question of law has been formulated for determination:-
"whether the appellate court below has given the
correct interpretation of the documents of Ekrarnama
(Exhibit-7) and the deed of usufructuary mortgage
(Exhibit-2) in order to come to the conclusion that
there had been partition by metes and bounds
between the parties with regard to the suit
properties?"
3. The suit in question was filed alleging that the
plaintiffs and the defendants are the descendants of common
Patna High Court SA No.238 of 2011 dt.26-05-2025
ancestor, namely, Mahipal Bhagat, who had five sons. Mahipal
Bhagat died in jointness with his son Patiram Bhagat, who had one
son, namely, Sini Ram Bhagat. Both the parties belong to the
branch of Sini Ram Bhagat. Sini Ram Bhagat had two wives.
From the first wife, there was one son, namely, Mahadev Bhagat
and from the second wife, there was one son, namely, Jagdish
Bhagat.
4. Original plaintiffs were representing the branch of
Jagdish Bhagat and the defendants were representing the branch of
Mahadev Bhagat. It is further case of the plaintiffs that in the year
1929, amicably oral family partition was held between Patiram
Bhagat and Sini Ram Bhagat and in that partition, Patiram Bhagat
got 1.47 acres of land out of Schedule-I land and remaining 1.47
acres of land went to the share of Sini Ram Bhagat. Both the
brothers of Sini Ram Bhagat got the land allotted to his father in
the said family partition. The land which fell to the share of Sini
Ram Bhagat is the subject matter of partition and fully described
in Schedule-II item No. 1 of the plaint which is the suit land.
5. It is further case of the plaintiffs that Sini Ram Bhagat
died in the estate of jointness with his two sons namely, Mahadev
Bhagat and Jagdish Bhagat in or about the year 1938 and both the
sons jointly inherited the suit land and came in exclusive
Patna High Court SA No.238 of 2011 dt.26-05-2025
possession of the same. It is further case that the entire property
was left by their father, namely, Sini Ram Bhagat and moveable
and immoveable property were partitioned between them except
the suit land and both the branch divided in status only and the suit
land as said remained joint even after the death of Mahadev
Bhagat, who died more than 25 years ago leaving behind his four
sons and grandsons, who are parties to the suit. As there was
disturbance in the joint family, entire property was partitioned
between them in the year 1942 except the suit land. Although a
separate Jamabandi was created in the name of Mahadev Bhagat
and wife of Jagdish Bhagat, but as a matter of fact, the suit land
was never partitioned by metes and bounds and since the partition
of 1942, the branch of plaintiffs and branch of Mahadev Bhagat
were joint with respect to the suit land. It is further case of the
plaintiffs that at the stage of survey and consolidation operation,
the authorities illegally inserted and in collusion with the
defendants got carved the suit land in several new plots which is
indicated in Schedule-II Item 2 of the plaint and this was done by
the defendant 1st and 2nd parties only to jeopardize the legitimate
interest of the plaintiffs. It is pleaded that separation of Jamabandi
for the suit land is apparently illegal and separate Jamabandi in
the name of defendant 3rd party i.e. wife of Jagdish Bhagat is
Patna High Court SA No.238 of 2011 dt.26-05-2025
illegal on the very face of it as she is not entitled for any share in
view of the fact that the suit land was the ancestral property of the
plaintiffs, defendant 1st and defendant 2nd party. However,
defendant 3rd party has nothing to do with the suit land as Jagdish
Bhagat and his sons are entitled for half share in the suit land. The
suit land is located at Sultanganj-Deoghar Road adjacent to the
east to the suit land and the survey authority ignoring the location
of the suit land, recorded front of the portion appertaining to road
in favour of defendants and plaintiffs were given the back side of
the allotted portion of the defendants causing loss and hardship to
the plaintiffs. The entry in this survey Khatiyan is illegal, void and
not binding upon the plaintiffs. A proceeding under Section 144
Cr.P.C. was started between the parties for the suit land which
ultimately converted into proceeding under Section 145 Cr.P.C.
The plaintiffs were the first party and the defendants were the
second party in the suit proceedings. Both the parties adduced their
evidences and filed their respective documents. After hearing the
parties, the learned Magistrate held that the parties are in joint
possession of the suit land which was held up to the revisional
court i.e. Additional District Judge-1st, Banka, which vide order
dated 01.09.1995 held that the parties are in joint possession of the
suit land. It is further contended that the plaintiffs filed a suit
Patna High Court SA No.238 of 2011 dt.26-05-2025
during the pendency of proceeding under Section 145 Cr.P.C.
which was dismissed for default as it was the suit for only
permanent injunction during the pendency of survey and
consolidation proceeding. The plaintiffs and defendants are in joint
possession of the suit land but the defendants always create trouble
with the plaintiffs in joint enjoyment and as such, the plaintiffs
filed the present suit for partition of half share after appointing
Survey Knowing Pleader Commissioner.
6. On summon, the defendants 1st party and 2nd party and
minor defendants have filed their written statements. However,
defendant 3rd party have not filed any written statement. No written
statement was filed on behalf of the defendant 4th party, who are
said to be purchaser of the said land from defendant 1 st and 2nd
party. The defendants raised several objections about the
maintainability of the suit. They also denied the plaintiffs' claim
on merit. It is further pleaded that the present suit is a suit for
declaration of title and recovery of possession but the plaintiffs
have filed the suit for partition. According to the defendants,
partition of the suit land has already been done between deceased
father of defendant nos. 1 to 4, namely, Mahadev Bhagat and
deceased mother of original plaintiff no. 1 and grand mother of
plaintiff no. 2 inasmuch as in the year 1942 which was reduced to
Patna High Court SA No.238 of 2011 dt.26-05-2025
writing by way of Ekrarnama and was accepted by the ancestor of
both the parties in the said partition. The moveable and
immoveable properties including the suit land was partitioned half
and half and the parties remained in separate possession and they
used to cultivate and were utilizing the usufruct of the same as per
the Ekrarnama. The land of the suit plot no. 680 area 1.47 acres
was partitioned in between Mahadev Bhagat, ancestor of the
defendant and Sulochani, the mother of Jagdish Bhagat. The father
of defendants Late Mahadev Bhagat executed a mortgaged deed in
favour of Tara Devi, wife of original plaintiff no. 1 for taking a
loan of Rs. 1,000/- which she kept as security, 73.5 decimals of
disputed C.S. Plot No. 680 which is precisely the half of the area
allotted to Mahadev Bhagat and other half to Jagdish Bhagat. This
was redeemed by Mahadev Bhagat after repaying the mortgaged
amount to the mortgagee (Exhibit-2). The name of Mahadev
Bhagat and wife of plaintiff no. 1 is running in the survey record
separately and they are paying rent separately. So there is no any
jointness between the parties regarding the suit land since the year
1942.
7. Upon the aforementioned pleadings of the parties,
learned trial court framed altogether six issues for adjudication, out
of which issue nos. 2, 3 & 5 are the relevant issues which has been
Patna High Court SA No.238 of 2011 dt.26-05-2025
decided in favour of the plaintiffs and accordingly, the suit was
decreed.
8. The learned trial court clearly held that from the
perusal of the Ekrarnama Exhibit-7 / Exhibit-A, it appears that
there is no specific boundary given in it and allotted in the share of
the defendants. However, it is the definite case of the defendants
that out of total area 2.94 acres under plot no. 680, Khata No. 161,
half share of the defendant 1st party was allotted towards east of
the Sultanganj-Deoghar Road and with respect to the above,
Exhibit-B and Exhibit-2 have been referred but the aforesaid
mortgaged deed is not based on the Ekrarnama wherein there is no
mention of the specific boundary of the respective parties. It has
also been held that survey proceeding was not final and as such,
the plaintiffs are entitled for partition of the suit property which is
nearest to the road and valuable land and co-sharer cannot be
debarred from his valuable land. Learned trial court after
considering the oral as well as documentary evidence also held
that survey proceeding is not final. The court can reopen the
partition in joint family property and also held that there is unity of
title and possession in between the parties with respect to the suit
land and the plaintiffs were entitled to 8 Annas share and
accordingly preliminary decree was passed.
Patna High Court SA No.238 of 2011 dt.26-05-2025
9. Being aggrieved by the judgment and decree passed
by the learned trial court, the defendants filed Title Appeal before
the learned appellate court which was allowed by the judgment
and decree under appeal. The learned lower appellate court while
reversing the finding of the learned trial court, came to conclusion
that Exhibit-2 and Exhibit-7 are admitted by both the parties.
Therefore, it appears that partition was done by way of severance
in estate of jointness. The plaintiffs did not challenge the whole
partition as made under Exhibit-7 / Exhibit-A, but only challenged
a part of the land in the whole property as mentioned in Exhibit-7 /
Exhibit-A on the ground of situational disadvantage which is
legally not permissible. It has been further held that there is no
unity of title and the unity of possession between the parties with
respect to the suit property. As such, the judgment and decree of
the trial court was set aside.
10. Learned counsel for the appellants vehemently
submitted that the learned lower appellate court wrongly
interpreted the documents of Ekrarnama (Exhibit-7) and deed of
usufructing mortgage (Exhibit-2). Bare perusal of Exhbit-7 /
Exhibit-A, it is apparently clear that though there was mutual
partition but the land situated in Mauza Khesar Khata No. 161
(suit land) and some other lands were kept joint and as such, both
Patna High Court SA No.238 of 2011 dt.26-05-2025
the admitted documents will clearly show that there was no
partition with respect to the suit land even after separation amongst
the parties. Learned appellate court has also ignored the fact that
usufruct mortgage Exhibit-2 / Exhibit-B executed by Mahadev
Bhagat in favour of wife of Jagdish Bhagat, namely, Tara Devi in
which the details of land had been described bearing Khata No.
161, Plot no. 680, but in the bottom of the plot, half has been
mentioned without specific boundaries of the area and as such, this
document itself proves the fact that parties have half share in this
property without a specific portion allotted to them. Learned
counsel for the appellants submitted that it is well settled that it is
always open to the members of a joint family to divide some
property of the family and to keep the remaining property
undivided. This view has been taken by this Hon'ble Court in the
case of Smt. Bijay Laxmi Kumar & Ors. Vs. Most. Shyama Devi
& Ors. reported in (2012) 4 PLJR 769 (Para 20). It is further
submitted that separation in the family by mutual partition is not a
partition by metes and bounds. Reliance in this regard has been
placed in the case of Pata Sahu and Another Vs. Hiru Sahu &
Others reported in AIR 1991 Pat 276. (Para 42). Learned counsel
further submitted that the Consolidation Act merely provides a
machinery for consolidation of the land and determination of the
Patna High Court SA No.238 of 2011 dt.26-05-2025
right for limited purpose. The suit based on title challenging the
correctness of the entry in register of the land under the
Consolidation Act are not barred in the Civil Court. This view has
been taken by the Full Bench of this Court in the case of Sheikh
Haider Zan vs. Md. Yusuf Ansari & Another reported in 2000 (2)
PLJR 338 (Para 42). Learned counsel further submitted that the
lower appellate court has failed to appreciate the documentary
evidences adduced by the parties in right prospective and even the
learned court has failed to consider the recital of Exhibit-2 and
Exhibit-7 while setting aside the decree of the trial court. In the
present case, learned lower appellate court has committed
jurisdictional error by not appreciating and interpreting the actual
status of Exhibit-2 and Exhibit-7 and as such, judgment and decree
passed by the lower appellate court is fit to be set aside by
affirming the judgment and decree of the trial court.
11. Mr. Shashi Shekhar Dwiwedi, learned senior counsel
appearing on behalf of the defendant/respondents, on the other
hand, submitted that some facts is admitted in the present case by
both the parties such as the Sini Ram Bhagat @ Shivnandan
Bhagat died in the year 1938 leaving behind his son, Mahadev
Bhagat from the first wife and the second wife, namely Sulochani
and her two minor sons. There was partition between Mahadev
Patna High Court SA No.238 of 2011 dt.26-05-2025
Bhagat on the one side and Sulochani, wife of Late Sini Ram
Bhagat @ Shivnandan Bhagat and her sons on the other side. The
descendants of Mahadev Bhagat are defendants in the present suit.
Jagdish Prasad Bhagat, son of Sini Ram Bhagat from his second
wife and his son, Manoj Kumar Bhagat are the plaintiff nos. 1 & 2
whereas the wife of original plaintiff no. 1, namely, Tara Devi has
been impleaded as defendant no. 14. Partition between Mahadev
Bhagat and Sulochani and her sons took place and the same was
reduced to writing by way of memorandum of partition containing
the shares made in partition to both the parties (Exhibit-7 /
Exhibit-A). It is submitted that in the entire body of the
memorandum of partition, there is no mention of leaving any
single property moveable or immoveable situated anywhere, to
have been left as joint. Therefore, the appellants cannot say that
those words in the agreement signifying joint cultivation and
distribution of usufruct in jointness between the parties. Both the
parties got their names separately mutated and have been getting
rent receipts separately in their names in terms of agreement i.e.
Exhibit-7 / Exhibit-A. It is also mentioned that there is separate
Jamabandi in the name of both the the parties and separate
preparation of khatiyan in the name of Mahadev Bhagat and Tara
Devi (Defendant no. 14). it is vehemently submitted that original
Patna High Court SA No.238 of 2011 dt.26-05-2025
plaintiff no. 1 Jagdish Bhagat filed Consolidation Case No. 1 of
1978-79 against Mahadev Bhagat for partition of the disputed
property, in accordance with Section 8A of The Consolidation of
Holdings and Prevention of Fragmentation Act (hereinafter
referred to as 'Consolidation Act'), where the claim of plaintiff no.
1 was dismissed holding that already there had been a partition in
the year 1942. Against that, an appeal was filed by plaintiff no. 1
which was also dismissed vide order dated 29.08.1983. The order
of the Consolidation Officer was affirmed in Revision Case No.
1948 of 1983 filed by Jagdish Prasad Bhagat. The said revision
case was also dismissed vide order dated 24.04.1986 holding that
partition had been affected between the parties in the year 1942
itself. Against the said order, the plaintiffs never moved before the
High Court and it attained finality.
12. Learned senior counsel for the respondents further
submitted that the findings of partition by lower appellate court
has not been recorded only on the basis of Exhibit-2 or Exhibit-7.
They have only added and supported the other evidence, in
abundance, found on record, including the oral evidence.
Therefore, a finding with respect to these two documents only
cannot be sufficient for upsetting the judgment delivered by the
appellate court. Admittedly, in the joint family property or a
Patna High Court SA No.238 of 2011 dt.26-05-2025
property joint between the parties, there is no determination of a
particular share or particular portion in favour of any particular
person. Every co-sharer/co-owner has got a right over every inch
of land. It goes without saying that one cannot take a mortgage of
his own land. The wife of Jagdish Prasad gave a loan of Rs.
1,000/- by taking a registered mortgage from Mahadev Bhagat
with respect to her own joint property. Reliance has been placed in
the case of Ram Bahadur Nath Tiwary Vs. Kedar Nath Tiwary
and Others reported in AIR 1977 Pat 59, wherein, the Division
Bench of this Court had held categorically in paragraph no. 14 that
"separate transactions by members of the joint family may not by
themselves establish separation but mutual transactions between
two members of the family stand on an entirely different footing
and they furnish a very strong evidence of separation". It is also
submitted that separate residence or separate mess or separation in
cultivation are not evidence of partition. Learned counsel for the
appellants have relied on a judgment in the case of Pata Sahu
(supra) and learned counsel for the respondents also relies on the
said judgment which has followed the judgment reported in AIR
1930 Privy Council 73, AIR 1951 Pat 277, AIR 1946 Pat 278 and
AIR 1971 Pat 215. It is vehemently submitted that separation in
food and residence for a long time amongst the brothers of Hindu
Patna High Court SA No.238 of 2011 dt.26-05-2025
Family, independent transactions of property, separate possession
and enjoyment of properties, are by themselves not conclusive to
prove the partition but the cumulative effect of such facts may
show that there had been partition between the brothers during
their lifetime. From the judgment in question it is apparent that
cumulative effect of all the documents exhibited on behalf of the
parties have been taken into consideration, coming to an
irrefutable conclusion that a partition had taken place in the year
1942 which is admitted by both the parties. It is apparent from
paragraph nos. 10 and 10A of the plaint which shows that after a
road was constructed by the side of the defendants' share of land,
the suit was filed to get a share on the road side also. It is also
submitted that the plaintiff himself filed partition suit in
accordance with Section 8A of the Consolidation Act seeking
partition of the instant disputed land which was contested by the
defendants on the ground of previous partition which was upheld
by consolidation authority on looking into documents as well as
inspection of disputed lands. The order of Consolidation Officer
(Exhibit-D/1) was challenged before the Deputy Director,
Consolidation which also was dismissed vide Exhibit-D in 1983
and then a revision against the same was filed before the Director,
Consolidation which was dismissed vide order dated 24.04.1986
Patna High Court SA No.238 of 2011 dt.26-05-2025
and this order was never challenged before the High Court and it
attained finality. Therefore, those judgments between the parties
with respect to the same subject matter with the same plea by both
the parties had attained finality and the Civil Court cannot record a
finding contrary to the finding recorded by the Consolidation
Court. Learned senior counsel further placed reliance in the case of
Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary,
reported in AIR 1967 SC 1124, wherein, Paragraph nos. 6 & 7
have explained about what a partition means. It is settled law that
in the event of a partition being admitted or proved between the
parties, the heavy onus lies on the person alleging non-partition of
a particular property. In such view of the matter, the plaintiffs have
to prove unity of title and unity of possession in order to succeed
in a suit for partition. In the instant case, the same has not been at
all been attempted to be proved, much less proved. Learned senior
counsel submitted that the substantial question of law framed in
the appeal is not at all a question which is determinative of the suit
itself, as stated above and, therefore, the appeal is fit to be
dismissed.
13. On analysing the materials on records and impugned
judgments as well as substantial questions of law having been
framed by this Court in this appeal which is "whether the appellate
Patna High Court SA No.238 of 2011 dt.26-05-2025
court below has given the correct interpretation of the documents
of Ekrarnama Exhibit-7 (Exhibit-A) and the deed of usufructuary
mortgage (Exhibit-2) in order to come to the conclusion that there
had been partition by metes and bounds between the parties with
regard to the suit properties?"
14. Before dealing with the respective contentions put
forward by the parties, I would like to discuss in general the effect
and value of Ekrarnama (family arrangement) entered into
between the parties with a view to resolving disputes once for all.
By virtue of an Ekrarnama or agreement, the members of the
family descending from common ancestor seek to sink their
differences and disputes settled and resolved their conflicting
claims or disputed titles once for all in order to bring about
complete harmony and good will in the family.
15. Now, I shall take up the document Ekrarnama
(Exhibit-7) which shows both the branch i.e. Mahadev Bhagat son
of Shivnandan Bhagat (alias Sini Ram Bhagat) and Mostt.
Sulochani, widow of Shivnandan Bhagat, Indra Prasad Bhagat and
Jagdish Prasad Bhagat, minor sons of Late Shivnandan Bhagat
under the guardianship of their mother entered into an agreement
on 1349 Fasli i.e. 1942. From the bare perusal of the document, it
appears from the recital of the agreement that there were two types
Patna High Court SA No.238 of 2011 dt.26-05-2025
of property mentioned in the said agreement; one moveable (cash,
ornaments, grains) and another immoveable (agricultural and
residential house). However, moveable properties mentioned in the
said agreement has already been partitioned between them half
and half. Nothing remains for partition of moveable property. The
details of the agricultural land has been mentioned at the foot of
the document. So far partition of the house is concerned, the recital
denotes that the house situated at Sadar Bazar near Mahaveer
Sthan having equal share and house in which Jagarnath Bhagat and
both the parties i.e. Sulochani and her sons and Mahadev Bhagat
the parties are having equal share. The share of Mostt. Sulochani,
Indra Prasad and Jagdish Prasad having allotted with definite
boundaries of the house allotted to Sulochani and her sons in their
jointness such as North- Dev Narayan Bhagat, South- Jagarnath
Bhagat, East- Sadar Bazar, West-Road, whereas share allotted to
Mahadev Bhagat, the boundary of the said house mentioned as
North- Jagarnath Bhagat, South- Rajaram Bhagat, East- Mukhlal
Bhagat, West- Parti. This house was selected by Mahadev Bhagat
himself. It is further mentioned in the agreement (Ekrarnama) that
the lands situated at Mauza Khesar having area 2 bigha, 7 katha
stands in the name of Mahadev Bhagat in which both the parties
are having equal share. The produce (usufruct) of the said
Patna High Court SA No.238 of 2011 dt.26-05-2025
agricultural land shall be divided in equal share between both the
parties i.e. Mahadev Bhagat and Sulochani on year to year basis
and Government rent receipts (Malguzari) shall regularly be paid
by both the parties half and half. It is also mentioned that the
income from last year shall be divided into two shares. It is
specifically mentioned that except land and Lahna, nothing
remains joint and income of joint Lahna and land will be divided
by both the parties each year and details of the agricultural land
has been mentioned at the foot of the agreement. Thus, the recital
of the said Ekrarnama indicates the partition of the house of the
ancestor of the parties. So far agricultural lands are concerned, it
has been specifically mentioned that the lands remained joint and
income from the produce shall be divided in both the parties half
and half. Therefore, according to the recital of the Ekrarnama
(Exhibit-7), the suit land was left joint among the parties. There is
no material available on record to show that the said land was ever
partitioned by metes and bounds.
16. So far Exhibit-2 is concerned, this document shows
intra party dealing in respect of the part of the suit land. Exhibit-2
is a mortgage deed executed by Mahadev Bhagat in favour of Tara
Devi, wife of Jagdish Prasad Bhagat. The details of the land has
been described as Khata No. 161, Plot No. 680 area 73.5 decimals
Patna High Court SA No.238 of 2011 dt.26-05-2025
(1 bigha 3 katha 10.5 dhur). The total land of the Plot no. 680 is
1.47 acres which is the land in dispute. The details of the plot
number has been mentioned as half is noted below the plot number
which clearly means that only half of total land was mortgaged. It
is also apparent from the Exhibit-2 that the boundary of the
mortgage land which is half of 1.47 acres has been mentioned as
North -Kamli Bhagat, South- Hospital, East- Chhotelal Bhagat and
West- District Board Sadak, which is the boundary of entire land
in the suit i.e. 1.47 acres while through this document, only half
portion of total area of 1.47 acres of Khata No. 161, plot no. 680
was subjected to the mortgage. In any boundary, land under
mortgage does not disclose the name of Jagdish Bhagat or
Sulochani and others. Apart from Exhibit-7 and Exhibit-2, P.W.-2,
P.W.-3, P.W.-6 in their evidences have stated that there was no
partition of item no. 2 land of Schedule-II of the plaint.
17. It is also apparent from Ekrarnama (Exhibit-7), that
the parties shall contribute their shares of rent and divide the
annual income from the usufruct of land mentioned in Exhibit-7.
18. In view of Exhibit-7 and Exhibit-2, the learned
appellate court has wrongly interpreted the aforesaid documents
and came to a conclusion that their land had been partitioned by
metes and bounds. Contrary to that, Exhibit-7 specifically
Patna High Court SA No.238 of 2011 dt.26-05-2025
mentioned that the suit land remained ijmal, only house of the
ancestor of the parties were partitioned by metes and bounds with
definite boundaries. So far agricultural land is concerned, the same
remained joint. The mere entry in the survey record or Jamabandi
does not vitiate the right, title of the parties. There is a
presumption that properties are joint unless the same is rebutted by
good and cogent evidences. Presumption has not been vitiated by
either of the documents. While the said documents specifically
mentioned that agricultural land mentioned in the Ekrarnama was
joint with half share of both branches.
19. In the light of the narrative and discussion supra,
there can be no doubt that the learned lower appellate court erred
and was not justified in dismissing the suit of the plaintiffs by
setting aside the judgment of the trial court.
20. The substantial question of law formulated is,
therefore, answered in favour of the appellants.
21. Consequently, the judgment of the learned lower
appellate court dated 21.02.2011 passed in Title Appeal No. 60 of
2010 is set aside and the suit of the plaintiff/appellants is decreed
and the judgment and decree of the trial court dated 20.05.2010
passed in Title Suit No. 22 of 1997 is affirmed.
Patna High Court SA No.238 of 2011 dt.26-05-2025
22. This Second Appeal has got merit and accordingly, it
is being allowed.
23. There shall be no order as to costs.
24. Pending interlocutory application(s), if any, shall
stand disposed of.
(Khatim Reza, J)
premchand/-
AFR/NAFR AFR
CAV DATE 21.11.2024
Uploading Date 26.05.2025
Transmission Date N/A
