NEHALI PANJIYARA Vs. SHYAMA DEVI

JUDGEMENT

(1.) This appeal has been preferred by the abovenamed defendnats -respondents against the judgment and decree dated 26.2.1998 and 19.3.98 respectively passed by the then 1st Additional District Judge, Godda in Title Appeal No. 19 of 1985 (64 of 1988) by which the judgment and decree passed by the Subordiangte Judge, Godda in Title (p) Suit No. 37 of 1965 has been partly reversed and the suit of the plaintiffs -appellants has been, partly decreed. Apparently the appellate judgment is a judgment of reversely in part, of the judgment of the original Court, the plaintiffs -respondents filed the suit for partition in respect of the different shares in relation to different schedules of the plaint, in total 10, schedules were included in the suit.

(2.) The admitted position remains that the suit property besides Schedules 9 and 10 properties belonged to the joint property of four brothers, being inherited as the ancestral property and the plaintiffs are representing as the descendants of one of the brothers while the defendants different sets represent the other co -sharers. According to the plaintiffs, the suit properites were joint and the Bibhisan Panjiyara the main cotesting person was the karta of the joint family during the life time of his father and he acquired property as contained in Schedule 9 from the joint family and, as such the plaintiffs have prayed for partition. The defendants contested the suit on various grounds. It was contended that the Schedule 10 properties belonged to Vilaswati Devi who had got no nexus with the joint family and the same schedule has been included only to make the suit bad for multifarious cause of action. Similar is the case of Schedule 9 of the property. It is said to be as self -acquired property and not a joint family property. The other scheduled properties were said to be partitioned long back and during the time of survey settlement those properties were mutated in the names of individuals share -holders and hence, there was no unity of title and community of possession. It was admitted from the side of the plaintiffs also that possession was there separately but that was by convenience because of the increase in the share -holders in the joint ancestral family. The original Court dismissed the suit holding the same to be hit by multifarious cause of action and also under Section 34 of the Specific Relief Act. When there was no prayer from the side of the plaintiffs regarding declaration of title is respect of Schedules 9 and 10 properites. Regarding other properties, it was held that the properties were partitioned long back and separate possession was there, according to the shares of the parties. The appeal being preferred, the learned appellate Court also held that the suit for partition was not maintainable in respect of Schedules 9 and 10 properties as those properties did not belong to the ancestral properties but he held that for non -maintainability of the partition suit in respect of Schedules 9 and 10 properties did not render the whole suit infructuous. In respect of other properties as described in Schedules 1 to 8 after discussing the evidence both documentary and oral the appellate Court came to the finding that, although separate possession was there but such possession did not presume any previous partition as the shares were never allotted and, as such, the contention of the plaintiffs that the possession -was separate due to convenience was accepted by the appellate Court and hence, decreed the suit in respect of suit properties besides Schedules 9 and 10 properties.

(3.) Mr. Ashgar Hussain, Senior Counsel appearing for and on behalf of the appellatns submitted that the appeal being preferred against, the judgment of reversal and the points of law were involved, the appeal is a fit one to be admitted. According to him, the appellate Court did not shift the evidence and discuss oral and documentary evidence in details being the last fact -finding Court and, as such, the appellate Court judgment is bad and on this ground alone the appeal requires to be admitted. His furhter contention is that there was admission on the part of the plaintiffs and the plaint itself regarding separate possession on the basis of partition and, as such, there is not scope, for granting a partition decree on the face of such admission. His third submission is that the entries in the old records of right definitely presume regarding non -existence of unity of title and community of possession and the inference accepted by the original Court has been illegally reversed by the appellate Court. On the other hand, Mr. Sashi Shekhar Dwivedi, Sr. Counsel appearing for and on behalf of the plaintiffs respondents submitted that it is totally false to say that, the appellate Court did not appreciate the evidence and discuss it in its proper perspective while coming to a decision rather the appellate Court practically deciphered the evidence and shifted the same both on oral and documentary basis which the original Court failed to do. His further submission is that the plaintiffs had never made any admission in the plaint regarding pre -partition. He has referred to the paragraphs of the plaint in this respect. Regarding the thrid part, it is the submission of Mr. Diwedi that the entires were therein the revenue records specifying their possession but no -where specific possession in respect of pltos were there and wherever it was also there the same shows unequalness of the shares.