TORAL MAHTO Vs. CHANDESHWAR MAHTO

JUDGEMENT

(1.) The plaintiff's suit for partition for his moity share in the suit properties was resisted by Toral Mahto, defendant No. 1, on the ground that the plaintiff was a stranger to the family of Man Singh, father of Toral Mahto, and Gopi Mahto father of the plaintiff was not his brother. The plaintiff's joint title and possession were also denied by defendant No. 1. The Court below overruled the contention of the defendant and came to the conclusion that Gopi Mahto, father of the plaintiff, was full brother of Toral Mahto and the plaintiff was in joint possession of the suit 'properties. Hence, the plaintiff's suit for partition of his half share was decreed. Defendant No. 1 has, therefore, come up to this Court.

(2.) Learned counsel for the appellant challenged mainly the finding of the Court below that the plaintiff's father Gopi Mahto was son of Man Singh and, as such Toral Mahto, defendant No. 1, and Gopi Mahto were brothers. He, however, fairly conceded that the question of possession is immaterial for the purpose of this case. His main contention was that the oral evidence adduced in the case did not fulfil the requirements of Sections 50 and 60 of the Indian Evidence Act and, as such, it is of no evidentiary value for the determination as to whether Gopi Mahto was son of Man Singh and father of defendant No. 1. The contention of learned counsel for the appellant may be correct in respect of the evidence of some of the witnesses, but the finding of the Court below is not simply based on the oral evidence adduced by the parties in the case. The Court below has taken into consideration evidence both oral and documentary, facts and circumstances of the case in coming to the conclusion that Gopi Mahto, father of the plaintiff, was brother of Toral Mahto. The documentary evidence and circumstances in the case, which I shall presently discuss, conclusively establish that Gopi Mahto was the son of Man Singh. No case of ouster having been pleaded or proved the plaintiff is entitled to a decree for partition as claimed by him on this finding alone.

(3.) The land bearing plot No. 7222 of khata No. 457 having an area of 51 decimals is one of the properties which are the subject-matter of partition. The entire suit properties including this plot are claimed by defendant No. 1 as his exclusive properties. This plot originally belonged to one Ramzan Mian who gave it in Sudbharna to defendant Toral Mahto by a registered deed (exhibit 3) dated September 29, 1948, for Rs. 600/-. Later on, the heirs of Ramzan Mian sold this land to Bhattu Mahto defendant No. 2, son of Toral Mahto and plaintiff Chandeshwar Mahto son of Gopi Mahto by a registered sale deed (exhibit 4) dated February 16, 1954 for Rs. 900/-. It further appears that the name of Bhattu Mahto was mutated in the landlord's Scrista in respect of this land and rent receipts (exhibits 1/c, 1/d and 1/f) were also obtained on payment of rent. The aforesaid documents, namely, the rent receipt's (exhibits 1/c, 1/d and 1/f), the sudbharna deed (exhibit 3) and the sale deed (exhibit 4) have been filed by the plaintiff. In the sale deed it is stated that the father of the executants had given the land in rehan with possession to Toral Mahto, father ,of Bhattu Mahto, claimant No. 1 and uncle of Chandeshwar Mahto claimant No. 2. It is also stated that Rs. 600/- was set off towards the rehan dues in favour of Toral Mahto, that they had taken Rs. 100/- from the vendees prior to the execution of the deed and that the balance amount of Rs. 200/- was to be paid at the time of the exchange of equivalents. If the plaintiff was not a member of the family of Toral Mahto it would not have been possible to set off the rehan dues of Toral Mahto towards the consideration of the sale deed executed in the name of Bhattu Mahto son of Toral Mahto and Chandeshwar Mahto son of Gopi Mahto. The sale deed itself recites that Chandeshwar Mahto is the nephew of Toral Mahto, defendant No. 1. Toral Mahto, defendant No. 1, has given explanation in his evidence regarding the custody of the rent receipts and the rehan deed (exhibit 3). He has stated that some of his papers had been stolen. He denied to have taken any sale deed of the rehan land. According to his statement, his son Bhattu Mahto, defendant No. 2, had taken the sale deed and he was in possession of the land. He further stated that Bhattu Mahto was separate from him. No such case of separation between defendant No. 1 and defendant No. 2 has been made out in the written statement, nor is there any evidence to that effect. Therefore, the story of separation between Bhattu Mahto and his father defendant No. 1 cannot be accepted. Assuming that Bhattu Mahto was separate from Toral Mahto, there is no reason as to why the sale deed would have been taken in the name of the plaintiff also along with Bhattu Mahto, defendant No. 2, and the consideration of the Ijara dues (exhibit 3) would be set off towards the consideration of the sale deed if the plaintiff was a stranger to the family of defendant No. 1. The story of the documents having been stolen also cannot be accepted. Some of the old documents have been filed by defendant No. 1. No saneha of the alleged theft was ever lodged. Perhaps on account of the sale deed (exhibit 4) defendant No. 2 did not appear and file a written statement in Court.