Bannerji, J.C.
1.The appellant in this case is the defendant in the suit, which the four respondents instituted by plaint dated 25-12-2003 B. The prayer of the plaint is for a declaration that the mutation No. 925 dated 20-11-1998 B is wrong and incorrect and consequently it is void and inoperative.
2. It is further prayed that on the death of Man Das without issue, the plaintiffs are entitled to two-third share and the defendant, 1/3, in the lands situated in two villages, Kuthain and Manun.
3. The case is simple enough but it appears that sufficient care has not been bestowed upon it by the learned District Judge, Rampur. It is, therefore, desirable that this Court should endeavour to exclude from this judgment all such details as might obscure the question raised in this suit. It may be well then to consider the respective positions of parties in the language adopted by them.
4. The narrative of the plaintiffs' case is on the death of Man Das, ancestor of the parties, who was issueless, the parties received his inheritance through mutation No. 925 dated 20 11-1998 B, namely, one-half share in favour of defendant and the other half share in favour of the plaintiffs. One Ranyia was the ancestor, who had two sons, Sagru and Man Das. Sagru had five sons, two of whom, Jwala Das and Molak Ram, died issueless, Sagru and Man Das had a common wife but the issues were those of Sagru.
5. On the death of Sagru, the property devolved on Man Das and, on the death of Man Das, the property devolved on parties in three equal shares. The previous mutations were not in accordance with the custom and were illegally recorded and are, therefore, liable to be cancelled. The defendant, Joban Das, during the partition proceedings admitted himself to be a son of Sagru. Therefore, he cannot now hold himself out as a son of Man Das. Pot these reasons, the property left by Man Das should be divided into three equal shares and the plaintiffs are entitled to get two shares out of it. As the said mutation was against the state of things and as the defendant, Joban Das, was requested several times to have it cancelled and he had not done so, the plaintiffs have brought this suit. The cause of action arose on 20-11-1998 B, the date o the said mutation.
6. The narrative of the defendant's case is as follows: The defendant, Joban Das, resisted the suit on the ground that the khata was united for the purpose of realisation of land revenue. According to him, a formal partition had taken place and the partition deed is dated 13-8-1928, corresponding to 30th sawan 1985 B. The defendant admits that Sagru and Man Das were two brothers but states that the sons of Sagru were Niram Dass, Jwala Dass and Devi Nand and those of Man Das were Molak Ram (deceased) and Joban Das. According to the partition held some years ago, a moiety fell to the share of Joban Das and Man Das. The defendant's plea is that the suit is barred by time in as much as a partition took place more than twelve years ago. The defendant further alleges that the rights of the plaintiffs and himself and Man Das were finally settled on 10th May 1928 by a decision of the Court of the Raja Sahib dated 28th August 1928.
7. These statements show broadly and correctly the attitude of the parties to this litigation.
8. The learned District Judge settled several issues and it is regrettable that most of them have no bearing upon the facts relating to the controversy in the suit. Indeed, the following two issues did not arise from the pleadings of the suit, namely (1) whether the parties have got the custom of polyandry and (2) in case of polyandry, how the 'issues' are distinguished as to who was whose and who was whose?
9. The plain meaning is very difficult to gather from the word 'issues' and also from the repetition of 'who was whose.' In my opinion, valuable time of the Court was wasted on taking evidence on those two irrelevant issues.
10. Both the counsel complain bitterly and in my view, not without reason, that great injustice has been done to both the parties by the omission of the learned Judge to exhibit the documents over which the parties have no dispute and which are clearly admissible under the law.
11. The learned Judge observes
the parties produced many documents but they did not care to prove these documents
and further
there are some documents, such as statements made by Ganga Ram during partition proceeding in the Revenue Court, but all these statements are inadmissible as they are not proved.
12. My attention has been drawn by both the learned Counsel that the above observation is without foundation. There are certified copies of public documents admissible under Section 74, Evidence Act. There are other documents which are admissible under Sub-section (5) of Section 32 of the same Act. Lastly, there are documents which have been proved by witnesses, for example, batwara or the partition deed of the moveable property upon which the Court realized penalty, was proved by Nar Das (D.W. 3), yet it does not bear any exhibit number. There are certified copies of mutation proceedings which have been proved by witnesses, Over these certified copies of documents, there is no dispute yet they have not been admitted into evidence. Then there is a document, in original, proved by the witnesses.
13. It will serve no useful purpose to remand this case as the parties have no difference regarding admissibility of these documents. I agree with both the learned Counsel that, this Court can receive and examine these documents, so far as they bear upon the controversy in suit.
14. I give below the documents produced by the plaintiffs (respondents): (1) Exhibit Rule 1 -- Certified copy of application made by Joban Das For uniting khatas. (2) Exhibit Rule 2 -- Certified copy of the order of Raja Sahib dated 30-11-1931. (3) Exhibit Rule 3--Certified copy of statement of Joban Das dated 11-7-1928 in connection with the partition proceedings dated 10-5-1928 in the Court of Shri Raja Sahib. (4) Exhibit Rule 4/1--Certified copy of statement of Man Das dated 11-7-1928. (5) Exhibit B. 4/2- Certified copy of supplementary statement of Man Das dated 6-8-1928. (6) Exhibit Rule 5 -- Certified copy of statement of Dharam Das dated 28 7-1928. (7) Exhibit Rule 6 -- Certified copy of statement of Motu. (8) Exhibit Rule 7--Certified, copy of statement of Porku.
15. Documents produced by the defendant (appellant) are: (1) Exhibit A. 1--Certified copy of mutation No. 530 dated 17-12-1929. (2) Exhibit A. 1/1--Order on above of Shri Raja Sahib dated 13-7-1929, (3) Exhibit A. 2 -- Certified copy of mutation No. 529 dated 17-12 1928. (4) Exhibit A. 2/1 -- Order on above of Raja Sahib dated 13-7-1929. (5) Exhibit A. 3 -- Original partition deed dated 13-8-1928 relating to movable property. (6) Exhibit A. 4--Certified copy of application for partition dated 10-5-1928 filed by Ganga Ram and three others (plaintiffs), Puran, Amar and Nand Ram, minor sons of Molak Ram (deceased) versus Khemi Ram, alias Khima Ram, Sita Ram, minor sons of Niram Das (deceased) and Joban Das, son of Man Das. (7) Exhibit A. 4/1--Order on above dated 8-8-1928 made by Shri Raja Sahib.
16. It is necessary for me to refer to the plaint in this case. In Sayad Muhammad v. Fatteh Muhammad 22 I.A. 4, Lord Halsbury, delivering the judgment of the Privy Council, observed:
Whatever system of pleading may exist, the sole object of it is that each side may be fully alive to the questions that are about to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues.
In the present case, this was unfortunately not done. The plaintiffs set up in the plaint the existence of certain things. If they fail to establish it, Courts have no power to decree a different state of things or to introduce the existence of new things when such facts fly in the face of the allegations pleaded. The learned District Judge ignored a direction so often repeated by the Privy Council that in all cases from where an appeal lies the trying Judge should determine and give findings on all issues, so that the appellate Court might have the benefit of the view of the evidence taken by the trying Judge (Shiv Shankar v. Lakshman : AIR1943Bom83 .
17. In Eshenchunder Singh v. Shamachuran 11 M.I.A.7, Lord Westberry in delivering the judgment of the Board, observed as follows:
It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of cases is to be founded upon inferences at variance with the case that the plaintiff has pleaded. The determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made.
18. From the pleadings, it appears that the question for determination is whether the property in suit, situated in two villages, Kuthain and Manun, is joint property of one Man Das, so that on his death, this property devolved upon the parties in three equal shares and the answer to this question largely depends upon the construction and effect of the documentary evidence produced and admitted by the parties. (His Lordship then considered the documentary and oral evidence and then continued:)
19. On the true construction of the documents and having regard to the oral testimony of the witnesses produced by the parties, as well as the plaintiff's application to the Court of Raja Sahib for partition and Raja Sahib's order fixing the shares and dividing the property and registering the names in Revenue records and acts and dealings with the respective property falling into the share of the parties, for nearly twenty years, there can be one and only one conclusion that there was a severance of joint status and that the parties have been tenants-in-common since 1929. The authorities are very clear on this point. In Venkatapathi v. Venkatanarasim , Sir Shadi Lal, delivering the judgment of the Board observed that
a division of right or severance of the joint status may result, not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate, though it may not partition the estate. If a document clearly Bhows a division of right, its legal construction and effect cannot be controlled or altered by evidence of the subsequent conduct of the parties.
Further, in Mt. Anurago Kuer v. Darshan Rauth , Sir Shadi Lal observed:
Under the Mitakshara School of Hindu Law, the partition of the joint estate consists in dividing the shares of the coparceners in the joint property, and it is not necessary that there should be an actual division of the property by metes and bounds. The definition of shares may be proved inter alia by an entry in the record of rights showing the share of each member of the family. Such an entry will be evidence of the severance of the joint status,and finally, in Harkishan Singh v. Pratrap Singh , Sir Shadi Lal laid down the following law:It is not the statements of the parties but their actings and dealings with the estate which furnish a true guide to the determination of tFhe question of jointness or otherwise of a family. There is no doubt [that there can be a partition of the pint property without actual division of the property by metes and bounds. According to the Mitakshara Law, partition consists in defining the shares of the coparceners in the joint property and a physical division of the property is not necessary. Once the shares are defined, there is a severance of the joint status and thenceforth the parties hold as tenants-in-common.
20. I feel no doubt that having regard to the order of Shri Raja Sahib determining the shares of the parties who acted upon it and dealt with their respective shares, the proceedings in the Court of Raja Sahib must govern the rights of the parties. There was a severance of joint status in 1929 and the parties must be held as tenants-in-common.
21. An argument was submitted by counsel for the plaintiff-respondents that there was a re-union on 30th November 1931. I have given my most anxious consideration to the document (Ex. Rule 1), which has been admitted by both the parties. This is a document which is a certified copy of a petition made by Joban Das (defendant-appellant) son of Man Das and Ganga Ram (plaintiff 1). Other parties are not involved in this petition. The purport of this petition appears to be to unite the Khatas. The word used is (sic) which is an abstract noun derived from the word (sic) or 'picture' and both the learned Counsel agree that this word conveys such meaning as 'considered' or 'treated'. The prayer was that the Khatas of Joban Das, representing Man Das and of Ganga Ram may be 'treated' as joint. It is not clear for what purpose it was made. But from the order of Raja Sahib (EX Rule 2)dated 30th November 1931, its object becomes clear. The Raja Sahib orders exemption from 'begar' (free labour) beginning from Kharif 1988 B., corresponding to 1929-30. The application was, therefore, intended to obtain exemption from 'begar' (free labour), by treating the different Khatas as one. I do not find anything in this application or in this order, as evidence of re-union in the sense the learned Counsel employs that word. The law as laid down by the Privy Council on the subject of re-union is: 'after a complete partition between members of the joint Hindu family, the burden of proving that there was a subsequent re-union rests upon the party relying on such reunion,' Babu v. Official Assignee, Madras . It requires very cogent evidence to satisfy the burden of establishing that members of a family who had separated have by agreement between them succeeded in so altering their status as to bring themselves within all the rights and obligations that follow from the creation of a joint undivided Hindu family. (See Smt. Bhagbati Devi v. Murlidhar A.I.R.1913 P.C.106. Again in 'Ram Narain v. Mt. Pankuer ,' it was held as follows:
Therefore, a re-union although established in fact, is Inoperative in law unless the parties to it are also parties to the original partition.
This application (Ex. Rule-1) if at all an evidence of re-union does not include other plaintiffs who were parties to the original application for partition before the Raja Sahib in Ex. A-4. Moreover, the plaintiffs never rested their suit on the fact of re-union. Paragraph 4 of the plaint sets out clearly that the plaintiffs have a grievance against the mutations recorded since the partition, which they state, have been illegally made. The plaintiffs did not join issue on the point oft re-union and no evidence was directed to establish it. For these reasons, the plea of re-union,' taken at this stage, is fit to be rejected.
22. The learned Counsel for the defendant argued on points of limitation that the suit brought by the plaintiffs is barred. It is true that the question of limitation is prima facie admissible even in the Court of last resort Lahshmi Sebak v. Ram Rup . I think that this plea of limitation must be allowed. Once the partition has been proved, shares defined in the Revenue Record and parties have acted or dealt with their respective shares, for nearly twenty years, the plaintiffs cannot be heard to say that the family still continues joint.
23. I may finally observe that none of the plaintiffs ventured into the witness-box at the trial excepting Ganga Ram who was examined before the settlement of issues and was not subjected to any cross-examination. It is impossible under the circumstances to overlook the significance attaching to the refusal of the plaintiffs to enter the witness-box. It raises a presumption against them which the evidence of the other witnesses certainly does not dispel. It is the bounden duty of a party personally knowing the whole circumstance to give evidence. Nonappearance as witness would be the strongest possible circumstance to discredit the truth of his case. (See Gurbakash v. Gurdial 0049/1927 . I have already underlined (here itaticized) certain observations in order to show how aptly they apply to the facts of the present case. Joban Das is named and names himself as son of Man Das in all these applications. This is a very significant fact which cannot be lost sight of. Whatever statement was made by him or by Man Dan before the Ruler (Exs Rule 3, Rule 4/1 and 4/2), have little evidentiary value in the present case as the matter was concluded by the order of the Raja Sahib dated 8th August 1928. For twenty years the Revenue Records have remained unchallenged and further Joban Das and his father have been in possession and peaceful enjoyment of their share during these years.
24. For the reasons appearing above, I would allow the appeal and set aside the judgment and decree of Shri Chet Ram, District Judge, Rampur, and dismiss the suit with costs here and in the Court below.