Kashi Giri& Ors. vs. Most.Sundari Devi& Ors.

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.145 of 2002

(Against the Judgment dated 20.08.2002 passed by the learned 8th Additional

------

District Judge, Hazaribag in Title Appeal No.25 of 1985)

• 1. Kashi Giri
• 2 (A) Most Sudha Devi w/o Late Ghaman Giri
• 2 (B) Puspa Giri minor D/o Late Ghaman Giri
• 2 (C) Munna Giri minor S/o Late Ghaman Giri
• 3. Darshan Giri
• 4. Sadhu Giri
• 1, 3 and 4 are sons of Late Deodhari Giri

Resident of village Sariyadih, P.S. Barhi, Dist. Hazaribagh

.... .... …. Appellants

Versus

• 1. Most Sundari Devi wife of late Budhan Giri
• 2. Binod Giri son of late Budhan Giri
• 3. Pramod Giri son of late Budhan Giri
• 4. Kailash Giri son of late Chehan Giri
• 5. Dineshwar Giri son of late Chehan Giri
• 6. Girja Giri son of late Mithu Giri
• 7. Ram Briksha Giri son of late Mithu Giri Nos. 2 and 3 are minors and are being represented through their mother and natural guardian Smt. Sundari Giri, the respondent no.1 who interest is not adverse in that of her minor son.

All resident of Sariyadih, P.S. Barhi, Dist. Hazaribagh

... .... …. Respondents

For the Appellants	: Mr. Rajiv Nandan Prasad, Advocate
	: Mr. Nilendu Kumar, Advocate
For the Respondents	: Mr. Anurag Kumar, Advocate
	: Mr. Saurabh Shekhar, Advocate

------ PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------

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 20.08.2002 passed by the learned 8th Additional District Judge, Hazaribag in Title Appeal No.25 of 1985 whereby and whereunder, the learned first appellate court has dismissed the appeal and observed that the judgment and decree passed by the Munsif, Hazaribag in Title Suit No.125 of 1981 did not warrant interference.

3. The brief facts of the case is that the plaintiffs filed the suit for title of Scheduled B property of the plaint. It is the case of the plaintiffs that the plaintiffs and defendants are descendants of common ancestor Mangar Giri who was the recorded tenant of Scheduled B property of the plaint along with other properties. It is claimed by the plaintiffs that the suit land is a joint hindu family property of the plaintiffs and the defendants. Hence, the plaintiffs claimed half share in the entire suit property whereas the case of the defendants is that the plaintiffs sold almost all of their lands and the defendants took compassion on them and have allowed the family members of the plaintiffs to reside in one room over plot no.6456 out of the suit land. It is further the case of the defendants that since rent fell in arrears in respect of khata no.156 which is the suit land consisting of three different plots, the ex-landlord brought the land of khata no.168 under their control and possession except the plot no.6456 which was in the possession of the defendants and subsequently, on 21.01.41, the remaining two plots of land being 6485 and 6486 of the said khata no.168 of the suit land were settled with Jaipakar Kunwari- grandmother of the defendants being the mother of their father and after such settlement, Jaiprakar Kueri came in peaceful possession of the above two plots being 6485 and 6486 and it is her exclusive self-acquired property and after death of Jaiprakar Kueri, her two sons being Chohan Giri and Mithu Giri came in possession of the

suit plot and the plaintiffs have no right, title and interest nor any unity of title or possession in respect of suit land.

4. On the basis of rival pleadings of the parties, the trial court altogether framed the 7 issues :-

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs cause of action or the suit?

(iii) Is the suit barred by limitation, estoppel, resjudicata and acquiescence?

(iv) Is the suit land properly valued and the court fee paid sufficient?

(v) Are the suit lands joint family properties of a Hindu undivided family as alleged by the plaintiff or are the suit lands exclusive and separate properties of the defendants?

(vi) Are the plaintiffs entitled to a decree for partition of 8 annas share as claimed?

(vii) To what relief or reliefs, if any are the plaintiffs entitled?

5. The learned trial court first took up issue no. (iv) and observed that issue no.(iv) was not pressed. Then the learned trial court took up issue no. (iii), (v) and (vi) together and after considering the evidence in the record that is the oral testimonies of 10 witnesses examined by the plaintiffs and the documents which have been marked Exts. 1 to 8 and the deposition of 9 witnesses examined by the defendants and the documents were marked Ext. A to K and also considered the settled principle of law that when there has been a partial partition, the presumption arises that it was a complete partition both as to the parties and to property and that the suit was brought for partial partition of a small chunk of the joint property and also considering the fact that the father of the plaintiffs filed Title Suit No.141 of 1948 in the court of Munsif, Hazaribagh for partition of the land of other joint property between the parties and basing upon the plaint of Title Suit No.141 of 1948 wherein, it was mentioned that there has already been prior partition between the parties in the year 1948 but there was no reference to the suit land in the said plaint of Title Suit No.141 of 1948 and on the basis of the evidence available in the record, came to the conclusion that the suit property is the separate property of Jaipakar Kunwari and held that the plaintiffs have no unity of title or unity of possession in respect of the suit land and answered the said issue in favour of the defendants. Thereafter, the learned trial court took up issue no. (i) and held that as the suit was filed after lapse of 37 years after the prior partition hence, the suit is barred by limitation. In respect of issue no. (ii), the learned trial court held that the plaintiffs have no valid cause of action and in respect to issue no. (vii), it was held by the learned trial court that the suit land is separate and self-acquired property of Jaiprakar Kueri- grandmother of the defendants. Hence, the plaintiffs are not entitled to decree of half share and dismissed the suit.

6. Being aggrieved by the judgment and decree passed by the learned trial court, the appellants field Title Appeal No.25 of 1985 in the court of District Judge, Hazaribag which was heard and disposed of by the learned first appellate court by the impugned judgment and decree.

7. The learned first appellate court made independent appreciation of evidence in the record and after considering the settled principle in paragraph no.328 of Hindu Law by Mullah, 13th Edition that a partition between coparceners may be partial either in respect of the property or in respect of the persons making it and it is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate while retaining their status as a joint family and holding the rest as the properties of joint and undivided family but if the partition is admitted and proved, the presumption is that the properties are divided and the person alleging that some family property is left joint and undivided claiming to be in joint possession and the same is liable to be partitioned has to prove his case. The first appellate court took into consideration that there was no documentary evidence to prove that there was any agreement between the parties at the time of previous partition in 1948 to exclude the properties in suit for partition and also considered the evidence in the record that both the parties have separate mess and business prior to previous partition between the parties in the year 1948 and both have been coming in separate possession over the suit land and also considered the principle that where parties have in possession of land exercising right of ownership over the separate blocks of land over a long time, it would be presumed that these lands have already been divided and the rights of the parties defined with regard to them in such manner

as to preclude there being repartition relying upon the judgment of Patna High Court in the case reported in 1984 PLJR page 605 and held that the suit property has already been partitioned. There is no unity of title and interest between the parties. Hence, dismissed the appeal and did not interfere with the finding of the learned trial court.

8. At the time of hearing of the appeal, the following substantial question of law was formulated:-

(i) Whether the Lower Appellate Court has committed serious error in making out a third case that there was earlier partition between the parties in respect of the suit property whereas there is no such pleading of the parties on record?

9. Mr. Rajiv Nandan Prasad, learned counsel for the appellants submits that the learned court below has committed an error of law by making a 3rd case that there was a partition in 1948 between the ancestor of the plaintiffs and defendants. It is next submitted by Mr. Prasad that both the courts below have failed to appreciate the evidence in the record in its proper perspective. Learned counsel for the appellants relied upon the judgment of Hon'ble Supreme Court of India in the case of Shivnarayan v. Maniklal & Ors. reported in (2020) 11 SCC 629, paragraph no.29 and 30 of which reads as under :-

"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.

^"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:

Partial as to properties.— It is open to the members of a joint family to sever 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."

30.Mulla on Hindu Law, 22nd Edn. also refers to partial partition both in respect of the property and or in respect of the persons making it. In para 327 the following has been stated:

"327. Partial partition.— (1) A partition between coparceners may be partial either in respect of the property or in respect of the persons making it.

After a partition is affected, if some of the properties are treated as common properties, it cannot be held that such properties continued to be joint properties since there was a division of title, but such properties were not actually divided.

(2) Partial as to property.— It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family." (Emphasis supplied)

And submits that the courts below ought to have held that

even after partition, the plaintiffs are entitled to further partition in respect of the suit property. It is lastly submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed by awarding half share to the plaintiffs out of the suit property.

10. Mr. Anurag Kumar, learned counsel for the respondents on the other hand submits that the appellants have misled the court from the beginning as it has been categorically pleaded by the defendants in paragraph no.19 of their written statement that there was an earlier partition vide Title Suit No.141 of 1948, hence it is out and out false to say that there was no pleading of the parties that there was earlier partition between the parties to the suit and in the absence of the pleadings of either of the parties, the learned appellate court made a 3rd case that there was a partition in 1948. Hence, it is submitted that there is absolutely no substantial question of law involved in this appeal and as by cogent evidence, the defendants have proved that the suit property was a self-acquired by Jaiprakar Kueri- the grandmother of the defendants and the defendants have inherited the said land through their father who is the Class- I heir of Jaiprakar Kueri and the defendants are the Class- I heirs of their father and the plaintiffs are not the Class –I heirs of Jaiprakar Kueri, hence, there is no unity of title or possession between the plaintiffs and the defendants and the learned courts below having rightly dismissed the suit and the appeal respectively upon proper appreciation of evidence in the record which are correct finding of facts, hence this appeal being without any merit be dismissed.

11. Having heard the submissions made at the Bar, I find force in the submission of the learned counsel for the respondents that in paragraph no.19 of the written statement, there is specific pleading of the defendants that there was a previous title suit vide Title Suit No.141 of 1948 by the father of the plaintiffs for partition of the joint family property. Hence, I have no hesitation in holding that the sole substantial question of law formulated in this appeal by the predecessor judge in the bench, is factually incorrect as it being the case of the defendants specifically that there was a prior partition, it cannot be said that the trial court made out a 3rd case.

12. After carefully going through the materials in the record, this Court finds that it is the specific case of the defendants that their

grandmother- Jaiprakar Kueri acquired plot no.6485 and 6486 of khata no.168 after the rent fell in arrears in respect of entire khata no.168 which consist of plot no.6456 over which the house is situated and the ex-landlord took possession of the entire property except the house property situated over plot no.6456 and settled the same in favour of the grandmother of the defendants namely Jaiprakar Kueri.

13. Under such circumstances, this Court do not find any error in the appreciation of evidence made by both the courts below. Accordingly, this Court is of the considered view that there is absolutely no substantial question of law involved in this appeal. Hence, this appeal being without any merit is dismissed but in the circumstances without any costs.

14. Parties have to bear their own costs.

15. Let a copy of this Judgment along with the Lower Court Records be sent to learned court concerned forthwith.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 3 rd August, 2022 AFR/ Sonu-Gunjan/-

.