MATHURA MAHTO AND ANR. Vs. JAGDISH MAHTO

JUDGEMENT

(1.) DEFENDANTS are the appellants.

(2.) THE substantial question of law to be answered in this appeal is :

(3.) IT appears that in the trial Court no issue was framed to decide exactly on this matter but an issue was whether the plaintiff is entitled to get a decree for partition of Schedule -A land and this discussion on this issue has been mentioned in paragraph 7 of the judgment. The learned trial Court found that in support of the payment of half and half consideration, thus, Rs. 500/ -, the plaintiff examined Babuni Mahaton and Nando Mahaton as PW 2 and PW 3 who were vendors and they had stated before the Court in their evidence that they had sold half land to the plaintiff and half land to the defendants through one sale -deed and the defendants have given them Rs. 500/ - towards the consideration amount and thus, this witness also proved before the Court below that both the parties were in cultivating possession and jointly used to distribute the crops but the witnesses did not say as to what ratio of the crops were used to be distributed. The learned trial Court considered that this admission of payment of half of the consideration by the plaintiff and half of the consideration by defendants is not mentioned in writing. DW 5 had been examined on behalf of the defendants and he has stated in his evidence that the consideration amount has been given by the purchasers jointly to the vendors as per contributing l/3rd each and after obtaining the sale deed three purchasers occupied about 1 Acre each and the land was never cultivated jointly and he denied that half of the consideration amount was paid by the plaintiff. On consideration of the evidence and considering the backdrop of Sections 91 and 92 of the Indian Evidence Act and also considering the recital, the trial Court came to a finding that the plaintiff was not entitled to half share as claimed because his interest in the suit land cannot be more than 1/3rd share. Thus, the learned trial Court found that the consideration amount was not paid half and half by the plaintiff and the defendants, rather it was laid in the ratio of 1/3rd each.