TMI Blog1980 (2) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... Pandey (Plaintiff No. 4), Shri Ram Pandey (Plaintiff No. 5), Sidhnath Pandey (Plaintiff No. 6), Most. Jatia (Plaintiff No. 7) represent the branch of Sheo Tahal Pandey. Naubat Pandey had three sons, namely, Rajkumar Pandey, Ram Nandan Pandey and Mahesh Pandey alias Ram Das Pande. Mahesh Pandey, initially plaintiff No. 8, is dead. Rajpati Pandey (Plaintiff No. 9) is son and Most Phuleshwari Kuer (Plaintiff No. 10) is the daughter-in-law of Mahesh Pandey. Chandra Shekhar Pandey (defendant No. 1), Anrath Pandey (defendant No. 2). Subadar Pandey (defendant No. 3), since dead, and Raghunath Pandey (defendant No. 4) are the four sons of Rajkumar Pandey i. e. they are grandsons of Naubat Pandey and Raj Narain Pandey alias Budhan Pandey (defendant No. 5), Chandraman Pandey (defendant No. 6) and Ram Ekbal Pandey (defendant No. 7) are the sons of Chandra Shekhar Pandey. 3. There are four items of properties in Schedule 1. Two of the items relate to lands of Mouza Chak Khan Pukur (Touzi No. 1447) and Mouza Kulia Degi (Touzi No. 1448) situate within 24 Paragana in the West Bangal which will be referred to hereinafter as the Bengal properties. Item No. 3 of Sen. 1 are lands of Khata No. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he properties of Schedules 3 and 4 after declaration of title. 6. Defendants 1 to 7 contested the suit by filing one set of written statement and so did defendant No. 8 by filing a different set of written statement. The main defence set up by defendants 1 to 7 was that the four branches of Debi Charan Pandey had already separated before the cadastral survey and settlement operation, which, undisputedly, was finalised in the year 1912. This partition resulted in disruption of the joint family of the parties, their separation in mess, ascertainment of their shares in all the joint family properties and partition by metes and bounds of all the joint family properties except the properties of Khata No. 19 (item No. 3 of Schedule 1), which contained lands as also the residential house of the parties and which were also subsequently partitioned. After this partition Sohbat Pandey, one of the Sons of Debi Charan Pandey, died issueless and the lands that had fallen to the share of Sobhat Pandey including his interest in the lands of Khata No. 19 were partitioned among the remaining three branches of Debi Charan Pandey. After this partition the parties ceased to have any concern with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps in the evidence more readily by reasonable inferences from the evidence on record than in a case where the eivdence is not obliterated or lost by passage of time. Ext.C3-l is a sale deed dated 16-4-1947 executed by Mahesh Pandey alone by which he disposed of his eight annas interest in some of the Bengal properties by stating that the property conveyed under the deed had been coming in his rightful possession by virtue of an amicable partition with the co-sharers, who were named therein and who included defendant No. 1 Chandra Shekhar Pandey. It is further staled therein that by this sale deed he, his sons and sons' son completely divested themselves of their interest in the vended property and that he was selling the property in order to acquire lands in the district of Shahabad. Mahesh Pandey was identified before the Sub-Registrar by plaintiff No. 1. Balmakund Pandey. Ext. C1-1 dated 23-4-1946 is a similar sale deed executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pointed out in course of argument by Shri Tara Kant Jha as to why such wrong statement should have been made there. Ext. J-1 is the deposition of P. W. 16 in Title Suit No. 22 of 1949 which was made on 18th August, 1954 in which he stated that Chandra Shekhar Pandey was not on good terms with them and that he was not the Malik of the family. Rather, he stated that Mahesh Pandey was the Mallik and Karta since his Hosh, he having given his age in the deposition (Ext. J-1) as 55 years. When the attention of P. W. 16 was drawn to the statements made in Ext. J-1 he came forward with an explanation that he had so stated at the instance of Chandra Shekhar Pandey but in the next breath, he stated that what he had stated there was correct. Shri Tara Kant Jha, however, contended that the above admission made by Mahesh Pandey in these sale deeds cannot be binding on the other plaintiffs though it may be binding on plaintiff No. 9. Certain principles as regards the effect of admission, have to be borne in mind. An admission must be a clear and unambiguous statement. The value of admissions must depend upon the circumstances in which they are made end possible motives for incorrect statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain lands to Budhan Pandey (defendant No. 5) and, undisputedly, kept a part of the consideration money in reserve for paying the dues of the hand-note (Ext. G-1). Ext F-1 shows that plaintiff No. 1 got the money due under this hand-note from defendant No. 5. The plaintiffs alleged separation in mess as also complete partition of all moveable properties in the year 1961 stating further that the immoveable properties remained joint. Defendants 1st party set up a case of complete partition some time before the cadastral survey. In such circumstances acquisition made by the different branches in their separate names and the transaction between the parties, inter se, though not conclusive proof of partition would be strong circumstances indicating partition. The trial Court was, therefore, in error in not attaching so much value to these documents, vide para 88 of the judgment. 11. The defendants have also filed the rent receipts (Ext. D-1 series) most of which relate to the lands of Schedule 3. They stand in the name of defendant No. 1 and relate to the period varying from 1944 to 1964. Some of these rent receipts are in respect of Bengal properties and they stand separately in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dey were issued by the authorities concerned in Bengal. Two rent receipts (Exts. F-l and F1-I) have also been filed by the defendants which were granted by the authorities in Bengal in the name of Chandra Shekhar Pandey. While observing that Ext. F series would not help the case of the defendants, the trial Court observed that Ext. 4 series proved the plaintiffs' case that since Mahesh Pandey was managing the Bengal lands, his name was entered into the Chaukidari receipts issued by the Bengal authorities. This is an incorrect approach adopted by the lower Court. 13. Undisputedly, there are two plots of land in Mouza Niyazipur appertaining to Khata No. 19 (item No. 3 of Schedule 1) over which cattle hats are held. Exts. 6 to 6B are the counter-foils relating to the realisation of tolls from the cattle sellers, Ext. 7 is the challan, Ext. 8 is the notice and Ext. 9 is the registration certificate, all of whom stand in the name of Chandra Shekhar Pandey. The production of these documents standing in the name of Chandra Shekhar Pandey by the plaintiffs has led the trial Court to infer jointness among the parties without considering the statement of D. W. 5 referred to above, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs alleging separation in 1961 and the defendants alleging partition before the cadastral survey operation. 15. Coming to the statement of D. W. 5 in course of his deposition in the court below, the Bengal properties consisted of several Khatas including Khata Nos. 145/174 and 144/173 consisting of Plot Nos. 188 and 187 having an area of 0.46 decimals and 1 acre respectively. In para 14 of his deposition, D. W. 5 stated that in these two Khatas only Mahesh Pandey and Raj Kumar Pandey got share to the extent of eight annas each presumably in the initial partition and that the other plaintiffs had no share therein. He further stated that the lands of these two Khatas were partitioned among the Malikan presumably meaning thereby Mahesh Pandey and Raj Kumar Pandey in the year 1920 or 1922 and in this partition entire land of Khata No. 145/174 fell into the share of Raj Kumar Pandey and the other Khata to the share of Mahesh Pandey. He further stated, in para 18 of his deposition, that Mahesh Pandey executed a sale deed in favour of Sarat Sao and Hazari Sao in which he transferred more land of one plot than what was his share and the said land was accordingly entered in one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others and the subject-matter of the suit was a deed of rehan executed by Jaipal Pandey. Ext. 20 is a certified copy of deposition of Raj Kumar Pandey father of defendant Chandra Shekhar Pandey in the said suit recorded on the 24th Feb., 1910. In the plaint there was a statement that the plaintiffs were members of a joint family governed by Mitakshara and Raj Kumar Pandey also stated in his deposition (Ext. 20) that the plaintiffs were all joint. Ordinarily a joint family envisages the existence of a karta of the joint family. There is no mention in this plaint as to who was the Karta of the joint family mentioned therein although it states about Jaipal Pandey having taken this loan in his capacity as karta of the family of the defendants, A karta of a joint family can alone bring a suit in respect of a transaction entered into by the joint family. Here the different branches of Debi Charan Pandey have been arrayed as plaintiffs and, as contended by Shri R. S. Chatterji, learned counsel for the appellants, all the plaintiffs might have joined as such on account of the loan in question having been advanced jointly by them although there was no joint family. D. W. 5 has also sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs of that suit and the defendants 2nd Party and that they were still members of the joint family. Shri R. S. Chatterji contended that the suit having been dlsmisssed this iugdnrent cannot operate as res judicata to which contention Shri Tara Kant Jha agreed but the latter contended that two of the sons of Raj Kumar Pandey being the co-plaintiffs of that suit the admission in the plaint about the joint family will be binding on the defendants 1st Party. Though the two sons of Raj Kumar Pandey, above named, were sailing in the same boat with Mahesh Pandey and Raghubir Pandey, father of plaintiffs 4 and 5 were sailig in the same boat with defendent Chandra Shekhar Pandey in that, suit, the stand taken by them in the instant suit is different. Ordinarily had the plaintiffs and defendants 2nd party of that suit been members of a joint family then, they were expected to fight with the outsiders to the family jointly and there would have been no occasion for some of the branches to be arrayed as defendants 2nd party. Lastly P. W. 16 stated, in para 19 of his deposition, that whatever was stated in Ext. 14 was at the instance of (Sikhane se) Chandra Shekhar Pandey. Any admission made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the plaintiffs earlier and had worked as a ploughman of Dudh Nath (P. W. 2) for eight to nine years. P. W. 6. on his own showing, is a ploughman of the plaintiffs and he had earlier deposed for them. His evidence regarding joint cultivation of some of the lands by the parties is inconsistent with the case set up by the plaintiffs as deposed to by come of the plaintiff witnesses. P. W. 8 claimed to be a relation but ignorance about the names of the issues of the family and the time when they were married make his claim of being a relation doubtful and it has been suggested to him that the relationship alleged by him is false. The evidence of P. W. 10 also discloses his incompetency to depose on the point of jointness. While the plaintiffs are his close relations, defendant Chandra Shekhar Pandey is not so closely related to him as Mathura, the father-in-law of defendant Chandra Shekhar Pandey, on his own showing is his separated uncle. P. Ws. 11 and 16 being the plain-tiffs their evidence cannot be accepted without a grain of salt. A scrutiny of their evidence discloses their clear anxiety to support their own case. Exts. F-1 and F1-I clearly belie the statement of P. W. 11 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above, consist of lands given in rehan in the names of different parties un-disputedly, they are acquisitions after the partition alleged by the defendants. If these properties were acquired by the parties separately in their names after the partition proved by the defendants they cannot be liable to be partitioned. 21. Coming to the properties of Schedule 3, they were the subject-matter of a proceeding under Section 145 Cr. P. C. between the parties. The evidence adduced indicates that these properties were obtained in a suit for foreclosure. The case set up by defendants 1st party, in para 26 of the written statement, was that they were their Khas properties and they were coming in their possession since long and the plaintiffs had no concern with the same. The stand taken by Chandra Shekhar Pandey in the Section 145 Cr. P. C. proceeding vide Ext. II-I, the judgment of that proceeding, was that this land had come to the share of defendants 1st party exclusively and they were paying rent for the same all along and obtaining rent receipts for the same. While some of the plaintiffs who were second party claimed to be in joint possession of this land, the defendants 1st party cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that, in the recent survey and settlement operation, these lands were jointly recorded in the names of the parties after rejecting the objection raised by defendant Chandra Shekhar Pandey vide the certified copy of the order Ext. 17B but the main ground on which this appears to have been done is a finding of the survey authorities that both the parties have got right and title in this land which, as rightly contented by Shri R.S. Chatterji, was beyond the scope for decision by survey authorities. It is also true that the stand taken in the past by defendants 1st party as to the manner of acquisition of this land was inconsistent but it is established beyond all shadow of doubt that they are coming in possession over the same to the entire exclusion of the plaintiffs since long on paying the rent for the same. The defendant 1st party as held above, has succeeded in proving the partition, as alleged by them. This being so, the presumption would be that all the properties of the joint family were divided and a person alleging that the joint family property, in the exclusive possession of one of the members after the partition, is joint and is liable to be partitioned, has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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