| SooperKanoon Citation | sooperkanoon.com/916979 |
| Subject | Criminal |
| Court | Patna High Court |
| Decided On | Apr-25-2011 |
| Case Number | FIRST APPEAL No. 597 OF 1994 |
| Judge | Mungeshwar Sahoo, J. |
| Acts | Hindu Succession Act, 1956; Code of Criminal Procedure (CrPC) - Sections 144, 145, 379 |
| Appellant | Suresh Singh, and ors. |
| Respondent | Smt. Bhagwati Devi, and ors. |
| Appellant Advocate | Mr. Nand Kishore Prasad Sinha; Mr. Satish Kumar, Advs. |
| Respondent Advocate | Mr. Kaushal Kumar; Mr. Sunil Kumar; Mr. Ganesh Chandra Thakur, Advs. |
2. The original plaintiff, Janki Singh filed the aforesaid partition Suit No.122 of 1983 claiming half share in the suit property mentioned in detail in Schedule 'I' to 'III' to the plaint. During the pendency of the suit, the original plaintiff Janki Singh died. In his place his legal heirs have been substituted who are the respondents here in the Appeals. The plaintiffs claimed the aforesaid relief of half shares in the suit property on the facts that Ganauri Mahto and Nemdhari Mahto of village Chouragopalpur P.S. Bihta, District Patna was full brothers. Ganauri Mahto had two sons, namely, Jitu Mahto and Jitan Mahto whereas Nemdhari had also two sons, namely, Mital Singh and Ganpath Singh. Ganauri Mahto and Nemdhari Mahto died in the state of jointness. Jitu Mahto and Mital Mahto who are also known as Jitu Singh and Mital Singh died issueless and unmarried in jointness. Jitan Mahto died in the year 1942 leaving behind his widow Rampati Devi and a daughter Parwati Devi. After death of Jitan Mahto in the year 1942, Rampati Devi, his widow owned and possessed the interest of her husband and she became the full owner of half share of her husband after coming into force of Hindu Succession Act, 1956. She remained in joint possession till her death in the year 1970. After her death, the property devolved on her daughter Parwati Devi who came and remained in joint possession till her death on 18.08.1981. After her death, the plaintiff being her son came in joint possession. Parwati Devi, the mother of the plaintiff was married with Raghunandan Singh. The defendant No.1 & 2 are sons of Ganpath Singh and the other defendants are their sons. The plaintiff has got half share in the entire suit property detailed in Schedule I to III of the plaint and there is unity of title and possession over the same.
3. The further case is that a proceeding under Section 144 of Cr.P.C. was started between Parwati Devi and the defendants with regard to plot No.470-477. The said proceeding was converted 145 Cr.P.C. proceeding which was numbered as case NO.370 (M) 81 and on 19.10.1982, joint possession of plaintiff along with defendants was declared. The plaintiff demanded partition but the defendants refused, therefore, this partition suit was filed.
4. The defendant on being noticed appeared and filed two separate written statements contesting the plaintiff's case. One written statement was filed by the defendant No.1 to 1/C and the other written statement was filed by the other defendants. Their defence is in the same line which may be stated in brief that Jitan Singh @ Mahto also died unmarried and issueless and, therefore, there is no question of Rampati being his wife and Parwati their daughters. Therefore, plaintiff has got no concern with Jitan Singh. On the death of Jitu Singh, Jitan Singh and Mital Singh, the entire suit properties devolved upon these defendants exclusively. These defendants are on inimical terms with one Shivpujan Singh of their village. The plaintiffs have filed the suit at the instigation of said Shivpujan Singh. Raghunandan Singh had purchased Parwati Devi from Janki Bazar, Chhapra and married her and, therefore, Parwati had no concern with Jitan. The defendant has also acquired title by adverse possession by remaining in exclusive possession for more than 12 years. Besides these defence, the defendants also pleaded various ornamental please.
5. On the basis of the aforesaid pleadings of the parties, the learned Court below framed the following issues:
(i) Is the suit, as framed, maintainable?
(ii) Has the plaintiff got cause of action for the suit?
(iii) Is the suit bad for non-joinder of the parties?
(iv) Is the suit barred by the principle of waiver, estoppel, acquisence and resjudicate?
(v) Is the suit barred u/s 34 of the Specific Relief Act?
(vi) Is the Court fee paid sufficient?
(vii) Is there unity of title and possession between the parties.
(viii) Was Jitan married or not?
(ix) Was Rampati legally wedded wife of Jitan?
(x) Was Parwati daughter of Rampati?
(xi) Did Jitan die much before 1936 or in the year 1942?
(xii) Whether the defendants have acquired right, title and interest in the suit properties by way of adverse possession?
(xiii) Did Rampati die in the year 1970?
(xiv) Are the plaintiff heirs of Jitan Singh?
(xv) Are the plaintiff entitled to share in the suit properties?
(xvi) Are the plaintiffs entitled to a decree as claimed by them?
(xvii) Whether the plaintiffs are entitled to other relief or reliefs, if any?
6. After trial, the learned Court below found that Jitan Mahto died leaving behind his widow Rampati Devi and daughter Parwati Devi. Jitan Mahto died in the year 1942 and, therefore, Rampati succeeded to the property and the parties came in joint possession and, therefore, decreed the suit.
7. The learned counsel, Mr. Nand Kishroe Prasad Sinha, appearing on behalf of the appellant submitted that the learned Court below has wrongly held that Rampati was the widow of Jitan Mahto relying on Ext. '4' which is forged document. The learned counsel further submitted that the learned Court below has wrongly discarded the evidences adduced on behalf of the defendants-appellants which are sufficient to hold that Jitan Mahto died unmarried and issueless in the year 1920. The learned Court below also wrongly discarded the documentary evidences produced by the defendants. 145 Cr.P.C. proceeding was started with respect to only two plots and, therefore, on the basis of the said proceeding, it cannot be said that the parties are in joint possession. Moreover, since the defendants are in exclusive continuous possession for more than 12 years, they have acquired title by adverse possession also. The learned Court below has wrongly placed reliance on the witnesses examined on behalf of the plaintiff regarding relation of Rampati Devi with Jitan Mahto and also with regard to year of death of Jitan Mahto. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are unsustainable in the eye of law.
8. On the other hand, the learned counsel for the plaintiff- respondents submitted that Ext.'4' is the certified copy of the municipality death register which was obtained in the year 1971 when there was no dispute between the parties and, therefore, the learned Court below has rightly relied upon Ext. '4'. In 145 Cr.P.C. proceeding, the defendants- appellant never raised the question of relationship of Rampati Devi with Jitan Mahto. They never alleged that Jitan Mahto died in the year 1920 unmarried and issueless. For the first time, they are raising this question in the written statement. Admittedly, there is no case that there had been partition and, therefore, the possession of one co-sharer will be deemed to be the possession of other co-sharers and, therefore, there is no question of adverse possession. The plaintiffs adduced reliable evidence in proof of the fact that Jitan Mahto died leaving behind his widow and daughter, namely, Rampati and Parwati respectively and on the contrary, the defendants have adduced unreliable evidence and the circumstances relied upon by the defendants are not at all reliable and, therefore, the learned Court below has rightly not relied upon. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed.
9. So far the First Appeal No.133 of 2002 is concerned, it arises out of final decree proceeding. It is submitted by the parties that if the Judgment and preliminary decree which is under the challenge in First Appeal No.597 of 1994 is set aside then automatically the final decree will be set aside. So far merit of First Appeal No.133 of 2002 is concerned, the learned counsel for the defendantappellant submitted that the learned Court below has not followed the well settled principal of law of partition. The learned Court below also has not given proper opportunity to the appellant for filing objection to the Pleader Commissioner and the Pleader Commissioner's report has been prepared in absence of the defendants- appellants. On the contrary, the learned counsel for the plaintiff- respondents submitted that the appellant did not take part in the final decree proceeding on the ground that they have filed First Appeal before the High Court against the Judgment and preliminary decree and, therefore, there was no objection to the Pleader Commissioner report. In such view of the matter, the learned Court below has rightly confirmed the Pleader Commissioner's report.
10. In view of the above contentions of the parties, the point arises for consideration in this Appeal is as to whether the plaintiff-respondents have got unity of title and possession over the suit property.
11. According to the original plaintiff, Janki Singh, his maternal grandfather was Jitan Singh. Jitan Singh had a daughter Parwati Devi who was married with Raghunandan and original plaintiff is the son of Raghunandan through Parwati Devi. Jitan Singh died in the year 1942 leaving behind his widow Rampati Devi and the daughter Parwati Devi who is mother of plaintiff. On the contrary according to the defendants case, Jitan Singh@ Mahto died unmarried issueless in the year 1920. So far Parwati Devi is concerned; the case of the defendants is that Raghunandan had purchased her from Janki Bazar, Chapra. Therefore, existence of Parwati Devi is not denied by the defendants.
12. To prove their respective cases, the parties have adduced oral as well as documentary evidences. P.W.2 has stated that Nanihal of Janki Singh is Chouragopalpur and the name of his Nana is Jitan Mahto. Such is the evidence of P.W.3, P.W.5, and P.W.6. P.W.6 in addition to the relationship has also stated that Jitan Singh died 50 years ago, i.e., 1993- 50=1943. This is the case of the plaintiff also that Jitan Singh died in the year 1942. This witness is aged about 70 on the date of his deposition. P.W.8 is the widow of original plaintiff Janki Singh. She has fully supported the case of the plaintiff as made out in the plaint. P.W.9 is the Pairvikar of the plaintiff. He has also supported the case of the plaintiff. P.W.10 is the sister of Janki Singh, the plaintiff. All these witnesses have stated that Jitan Singh was the Nana of Janki Singh. On the other hand, the witnesses examined on behalf of the defendants have given negative evidence to the effect that Jitan Singh died 60-62 years ago unmarried and issueless. It is well settled principal of law that the plaintiff has to prove his positive case. The learned Court below after considering the oral evidence came to the conclusion that the evidences adduced on behalf of the plaintiff are reliable evidence. It may be mentioned here that the reason for institution of the suit by the plaintiff is according to defendants that at the instigation of brother-in-law of Janki Singh, the suit has been filed. The brother-in-law of Janki Singh is in inimical terms with the defendant. This reasoning appears to be not reliable and it cannot be relied upon for the reason that a person who resides in another village will institute a suit claiming share in the property of a person with whom he has no relation. It is the definite case of the plaintiff that Jitan Singh is his Nana. He has adduced oral evidences. From perusal of Ext.'4', the certified copy of death register Patna Municipal Corporation, it appears that the said Ext. '4' was obtained on 28.07.1971. In column No.2, the name of deceased person has been mentioned as Mostt. Rampati Devi and at column No.3, the name of husband as mentioned as Jitan Mahto. Age of Rampati Devi has been mentioned as 88 years and the address is Chouragopalpur. From perusal of column No.8, it appears that the original plaintiff cremated the dead body of Rampati Devi who died on 04.02.1970 because of oldness. So far this Ext.'4' is concerned; the learned counsel submitted that it is forgd. An application was also filed in the Court below. The learned counsel for the appellant submitted that no order was passed on the application. No doubt, the defendants have adduced oral evidences and the witnesses have stated that Jitan Mahto died unmarried but in face of Ext. '4', the oral evidence of the defendants cannot be relied upon. This entry in the death register fully supports the case of the plaintiff that Jitan Mahto. Since the suit was decided considering and relying Ext.4, it will be deemed that the application filed by appellant was also disposed of.
13. D.W.2 Tekchandra Roy who is of different Tola has stated that Jitan Mahto died issueless unmarried. D.W.3 is Dharmveer Singh and has stated that the plaintiff has got no possession over the suit property and denied that plaintiff's Nana is Jitan Singh. D.W.4 has stated that plaintiff has got no relation with the defendant's family. Such is the evidence of D.W.5. D.W.6 denied the possession of the plaintiff over the suit property. However, he has admitted that there is dispute regarding the suit property between the parties. D.W.14 has also stated that Jitan Singh died issueless and unmarried. Jitan Singh died in the year 1920. It may be mentioned here that although this witness is giving specific year of death of Jitan Singh in the cross-examination at paragraph 9, he is unable to give year of death of his own grandfather although; he has stated that he has seen his grandfather. At paragraph 23, he has stated that he has not even heard the name of Ganauri Singh and Nemdhari Singh nor he had seen them. He is unable to give the name of father of Jitan Singh. Therefore, the learned Court below has rightly not relied upon these evidences. D.W.19 is the defendant, Mushafir Singh himself. The other witnesses are either formal witnesses or not on the point of death of Janki Singh in the year 1920 and that he died issueless and unmarried. D.W.22 has been examined by the defendant to prove that Raghunandan Singh had purchased Parwati Devi from Janki Bazar, Chapra and Janki Singh is their son. In the cross- examination at paragraph 13, he has stated that he had never gone to Janki Bazar, Chapra. Therefore, his evidence appears to be not reliable. From where he has learnt this fact has not been disclosed by him. D.W.23 is defendant No.3. As stated above, these witnesses have only denied that Janaki Singh had no relation with Jitan Mahto @ Jitan Singh.
14. So far the documentary evidences are concerned, Ext. O/2 is the evidence of Janki Singh in 145 Cr.P.C. Ext.2/C is the order passed in the said 145 Cr.P.C. proceeding declaring joint possession of the parties. From perusal of these documents, it appears that in the said proceeding, the defendants never raised this question that Jitan Singh died issueless unmarried in the year 1920. The learned counsel for the appellant submitted that there was no occasion for raising this point in 145 Cr.P.C. proceeding. I do not agree with the submission of the learned counsel because the plaintiff was claiming possession on the basis of his case that he is Nati of Jitan Singh. The documentary evidences produced by the defendants are also not direct to the question regarding Jitan Singh died unmarried issueless in the year 1920. Ext. 'F' is certificate issued by Project Officer, Bihta which is contrary to Ext. '4'. On what basis, this certificate was granted by Project Officer and what capacity has not been stated. He has also not been examined by the defendants. Ext. 'G' is certified copy of voter list. The learned counsel for the appellant submitted that this voter list does not contain the name of Rampati Devi and, therefore, Rampati Devi was not residing in village Chouragopalpur. So far this contention is concerned as stated above, this is only a circumstances put forward by the appellant. Only because the name of Rampati Devi does not find place in voter list, no definite conclusion can be arrived at that no such women was residing in the village and that she was not the wife of Jitan Mahto. Ext. 'J' is the family register of Mushafir Singh dated 30.03.1984. Ext. 'L' series are the certified copy of death register of Panchayat Lakshmanpur. The learned counsel for the appellant submitted that there is no mention of name of Rampati in the death register. It appears that all these documents have been obtained during the pendency of the suit. On the contrary as stated above, Ext. '4' is the certified copy which was obtained by the plaintiff in the year 1971 when there was no dispute between the parties.
15. P.W.6 has stated that Jitan Singh died 50 years ago. To falsify his statements, the defendants have produced Ext. 'B' series rent receipts which are granted by the ex. landlord in the name of Ganpath. The learned counsel for the appellant submitted that since Jitan Singh was not alive, the receipts have been granted in the name of Ganpath. This is again circumstantial evidence and it cannot be presumed that in the year 1937, Jitan Mahto was not alive. Some of the rent receipts are granted by the State of Bihar after vesting of Jamindari. These receipts have been filed to show that no rent receipts are in the name of Rampati Devi. Again this is only a circumstantial evidence and on the basis of this, no finding can be given that Rampati Devi was not residing in village Chouragopalpur or that she was not the wife of Jitan Mahto. Likewise Ext. 'H' and 'I' series and Ext. 'N' and 'M/1' are the notices under Section 145 Cr.P.C. and petitions filed for reduction of rent of the land. It is contended that those are in the name of Ganpath Singh only and, therefore, Jitan singh was not alive after 1920. These are again circumstantial only. When the plaintiff has adduced positive evidence, oral and documentary, in my opinion, the circumstantial evidence cannot override the positive evidence of the plaintiffs. There is nothing on record to disbelieve documentary evidence Ext. '4'. The Ext. 'C' and 'E' series are transfer deeds. It has been filed to show that the defendants are in exclusive possession of the property and are transferring the properties also independently.
16. The learned counsel for the appellant submitted that in complaint case No.253C/1981, the Magistrate has found that Janki Singh was not related with the defendants. It appears that a complaint case was filed by Janki Singh under Section 379 and in that case, the finding was given, in my opinion, it is admissible at all in this case to find out the relation of Janki Singh with the defendants. There is no reliable evidence adduced on behalf of the appellant to the effect that Jitan Singh @ Mahto died in the year 1920. The witness D.W.2 and D.W.6 are not at all reliable for the reasons that if Jitan Singh died in the year 1920 when he was aged about 75 years as has been stated by D.W.6, his age would have been 125 years in the year 1970 when his wife, Rampati died. Therefore, the difference of age between Jitan Mahto and his wife Rampati Devi is about 37 years which is unbelievable and unreliable and, therefore, the learned Court below has rightly not relied upon the case of the defendant that Jitan Mahto died in the year 1920. As discussed above, D.W.6 has stated to the effect that he has not heard about Ganpath Singh and Nemdhari Singh nor he known the name of father of Jitan Singh. Therefore, it appears that the defendants- appellants have pleaded this defence with a view to defeat the claim of the plaintiff only and this pleading is not supported by any reliable evidence.
17. So far the case that Janki Singh, the plaintiff is not related with Jitan Singh or that Parwati Devi was not the daughter of Jitan Singh is concerned also, we have already discussed oral as well as documentary evidences. The only evidence adduced by the defendant to the effect that Parwati Devi was purchased by Raghunandan from Janki Bazar, Chapra is not reliable for the reason that he is only a hearsay witness and moreover from where he heard this fact has also not been disclosed by him. He has not even seen Janki Bazar. So far death of Jitan Singh, issueless and unmarried is concern, Ext.4 clearly proves the case of the plaintiff and, therefore, the learned Court below has rightly relied upon this document. The defendants have not been able to falsify this document. The documentary evidences adduced by the defendants as discussed above are only circumstantial evidences and on the basis of those documents out of the said documents some of have been created during the pendency of the suit, no finding can be recorded that Jitan Mahto was not alive after 1920 or that he died unmarried, issueless.
18. In view of my above discussion, I find that the plaintiff have been able to prove that Jitan Mahto died in 1942 leaving behind his widow, Rampati Devi and daughter Parwati Devi and plaintiff is the son of Parwati Devi. The learned counsel for the appellant submitted that the defendants- appellants have prescribed their title by adverse possession because they are in continuous possession exclusively to the exclusion of others. The defendants are also dealing with the properties since 1943. The sale deeds have been field which are Ext. 'C' series. So far this submission is concerned; I find no force because we have seen above that Jitan Mahto had died leaving behind Rampati Devi who died in the year 1970. There is no pleading that the defendant ousted her. By mere transfer of some of the suit property, it cannot be said that the defendants were in exclusive possession. There is no reliable evidence of either ouster or adverse possession. The only defence is that Rampati was not the wife of Jitan Mahto. Further according to the defendants, they became the absolute owner of the suit property. Therefore, their pleading regarding acquisition of title by adverse possession is concerned; it is inconsistent with the case of the defendant because the adverse possession pre supposes title rest with another person. Mere long possession will never constituted adverse possession. There must be intention to possess the property by exercise of hostile title to the true owner. Here except the pleading that the defendants acquired title by adverse possession, there is no evidence that from which date the defendants started denying title or ousting Rampati Devi. I, therefore, find that the defendants have failed to prove acquisition of title by adverse possession.
19. In view of my above discussion, I find that the learned Court below has rightly found that the plaintiff has got unity of title and possession over the suit property. Therefore, the finding of the Court below is hereby confirmed.
20. In the result, I find no merit in this First Appeal and accordingly this First Appeal is dismissed with cost of Rs.10,000/-. The plaintiff will be entitled to release the cost from the defendant.
21. So far First Appeal No.133 of 2002 is concerned; it appears that no objection was filed by the appellants to the Pleader Commissioner's report. It is well settled principal of law that First Appeal against the final decree is in the nature of Second Appeal. From perusal of the order sheet of the Pleader Commissioner, it appears that the defendants never participated in the proceeding. It is not their case that they had no knowledge about the final decree proceeding. It appears that they intentionally abstained themselves from participation on the ground that First Appeal is pending before the High Court. Since First Appeal against preliminary decree has been dismissed, the learned Court below rightly appointed Pleader Commissioner and then when no objection was filed to the Pleader Commissioner report by the defendant-appellant, the learned Court below has directed to prepare final decree. I find no reason to interfere with the same. I, therefore, confirmed the final decree passed by the Court below.
22. In the result, both the First Appeals, i.e., First Appeal No.597 of 1994 and First Appeal No.133 of 2002 are dismissed with cost as stated above.