Patna High Court
Kaushlendra @ Indradeo PrasadversusRam Payari Kumari
- Decided
- Disposal
- DISMISSED
- Bench
- KHATIM REZA
Holding
The appellate court correctly held that no earlier partition was proved and the property must be divided equally between the heirs of Chhotu Mahto and Srichand Mahto.
Summary
The appellant, Kaushlendra, challenged a decree that ordered a half‑and‑half division of disputed land, arguing that the property had already been partitioned among the three brothers Chhotu, Srichand and Ganauri Mahto in 1980. The trial court held there was no unity of title and dismissed the suit, but the appellate court reversed, finding that the defendants failed to prove any prior partition and that the property remained joint family property, ordering it to be divided equally between the heirs of Chhotu and Srichand. On appeal, the High Court examined the evidence, noting that no documentary or oral proof of a metes‑and‑bounds partition was produced, and that the presumption of jointness under Hindu law applied. Citing Supreme Court precedents, the Court affirmed that mere separation of cultivation does not constitute a legal partition. Consequently, the Court found no error in the appellate judgment and dismissed the second appeal.
Issues considered
- Whether the disputed property was previously partitioned by metes and bounds among the co‑sharers.
- Whether the defendants have discharged the burden of proving such a partition.
- Whether the property retains the character of joint family property under Hindu law.
- Whether the appellate court erred in its findings and the decree.
- Whether the second appeal raises any substantial question of law.
Subjects
- partition
- joint family property
- metes and bounds
- Hindu law
- succession
- title suit
- appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.529 of 2016
======================================================
Kaushlendra @ Indradeo Prasad, Son of Late Chhotu Mahto, Resident of
Village-Gaurav Nagar, P.S. Parwalpur, District- Nalanda.
... ... Appellant/s
Versus
1. Ram Payari Kumari, W/o Chandeshwar Prasad, Resident of Village
Dharampur, P.S. Hilsa, District -Nalanda.
2. Urmila Kuamri Wife of Krishna Prasad, Resident of Village Chhotiaut, P.S.
Nalanda District -Nalanda.
3. Raj Kumari Devi, W/o Birmani Prasad, Resident of Village Gaura Par, P.S.
Chandi District -Nalanda.
4. Sunaina Devi, W/o Sidheshwar Prasad, Resident of Village Janaraw, P.S.
Silao, District - Nalanda.
5. Manju Kuamri, W/o Anil Kumar, Resident of Village Dariyapur, P.S. Chandi
District-Nalanda at present Shakuntala Niwas Mohalla M Lakshmanpur,
Kwyari Tola, Shershar Road, P.S. Sultanganj, District Patna.
6. Most. Sakuntala Kumari, W/o Sidheshwar Prasad, Resident of Sakuntala
Niwas Mohalla M. Lakshman Pur Ekyari Tola, Shershad Road, P.S.
Sultanganj, District -Patna, Patna 7.
7. Raj Lakshmi, D/o late Sidheshwar Prasad, Resident of Sakuntala Niwas
Mohalla M. Lakshman Pur Ekyari Tola, Shershad Road, P.S. Sultanganj,
District -Patna, Patna 7.
8. Pappu Kumar, (Minor) Son of late Sidheshwar Prasad, Under the
guardianship of their mother Sakuntala, Resident of Sakuntala Niwas
Mohalla M. Lakshman Pur Ekyari Tola, Shershad Road, P.S. Sultanganj,
District Patna, Patna 7.
9. Guddu Kumar, (Minor) Son of Late Sudheshwar Prasad, Under the
guardianship of their mother Sakuntala, Resident of Sakuntala Niwas
Mohalla M. Lakshman Pur Ekyari Tola, Shershad Road, P.S. Sultanganj,
District -Patna, Patna 7.
10. Smt. Shyama Devi, Wife of Late Jageshwar Prasad, Resident of Village
Alipur P.S. Hilsa, District- Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rohitashwa Kumar, Advocate
Mr. Sanjay Sinha, Advocate
For the Respondent/s :
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
11 11-03-2026 Heard learned counsel for the appellants.
2. This Second Appeal has been preferred against the
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judgment and decree dated 23.06.2016 passed by the Learned
Additional District Judge-Ist, Nalanda at Biharsharif, in Title
Appeal No. 64 of 2006 whereby the lower Appellate Court
reversed the judgment and decree dated 23.07.1998 passed by
the learned Sub-Judge-II, Hilsa, Nalanda in Title Suit No. 21 of
1991.
3. The appellant herein was the defendant before the
learned Trial Court and the respondents herein, were the
plaintiffs in Title Suit No. 21 of 1991. The plaintiffs-
respondents-1st set filed Title Suit (Partition) for partition of
their half share in the suit property and for carving out the
aforesaid share by appointing a survey knowing Pleader
Commissioner.
4. In order to determine the matter in its perspective, it
is necessary to briefly re-state the case of the parties.
5. The defendant-appellant, (the plaintiffs-
respondents-1st set) and defendants-respondents-2nd set are the
descendants of the common ancestor, namely, Kewal Mahto and
are related to each other. The genealogy has been admitted by
both the sides. It is also admitted fact that Chhotu Mahto,
Srichand Mahto and Ganauri Mahto were full brothers; all being
the sons of Kewal Mahto. It is also admitted fact that Ganauri
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Mahto died unmarried in the year 1982.
6. The case of the plaintiffs is with regard to partition
between the three brothers, which took place in the year 1987
only for the sake of convenience in cultivation of the land. After
the death of one co-sharer Late Ganauri Mahto, in the state of
jointness, his property was inherited by Chhotu Mahto and
Srichand Mahto jointly. The chakbandi khatiyan was prepared
in the joint name of Chhotu Mahto, Srichand Mahto and
Ganauri Mahto. It is further pleaded that after the death of
Ganauri Mahto some problems and difficulties were being felt
to run the joint family and due to which quarrel started between
the plaintiffs and defendant nos. 1 to 4. Subsequently, the
plaintiffs asked for partition from the defendants in the year
1987 but they were evading the same. Consequently, both the
parties remained in possession of joint property and once, the
parties divided themselves and ridge (Daj) was also carved out
and in accordance with that, mutation application was filed
before the concerned Circle Officer but defendant raised
objection resultantly the mutation case was rejected. The
application for mutation went up to the court of Additional
Collector, Nalanda but from there also, it was dismissed. It is
further contended that the plaintiffs again requested the
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defendant to partition the suit property by metes and bounds but
they kept evading, hence, this suit.
7. On summons, defendant nos. 1 to 4 appeared and
filed their written statement jointly. Apart from ornamental
objection against the pleading of the plaintiffs respondent-1st
set, the defendant nos. 1 to 4 pleaded that chak khatiyan was
prepared in the name of Chhotu Mahto, Srichand Mahto and
Ganauri Mahto, all sons of Kewal Mahto in respect of 5.96
acres land of Village-Gaurav Nagar in Mahal Shankar Dih.
Thereafter, partition was held by metes and bounds in the year
1980 in the manner that Chhotu Mahto, Ganauri Mahto
remained joint and the plaintiff Srichand Mahto became
separate wherein the land of Village-Gaurav Nagar and the land
of Mirzapur in respect of 1.87 acres and area of 0.73 ½ acre land
of Village-Shankar Dih, total area 2.60 ½ acre was allotted to
Srichand Mahto and the remaining area 5.22 ½ acre was allotted
to Chhotu Mahto (father of defendant nos. 1 and 4) and Ganauri
Mahto. All the co-sharers came in possession of the allotted
shares. After partition, Ganauri Mahto died in the year 1982 and
Chhotu Mahto came in possession of the share of Ganauri
Mahto, who was joint with him. It is further pleaded that after
partition the entire land of Village- Mirzapur was sold by the
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plaintiffs through various deeds in which he has clearly stated
that partition had already been held and he was selling the
property according to his share. As such, the averment of the
plaintiffs regarding jointness of the property cannot be believed.
The defendants have also stated about the various transaction in
the form of sale or exchange made by the plaintiffs in
accordance with their share allotted in the partition. Chhotu
Mahto died in the year 1984 and after 1980, there was no joint
family nor Chhotu Mahto was the Karta of the joint family.
There is no joint family property which was left to be
partitioned. Some properties are the personal acquisition of
defendant no. 4 Kauslendra @ Indradeo Prasad in the year 1972,
1974 and 1976. The joint family has got no concern with the
same nor got possession, rather, it has come alone in the
possession of defendant no. 4. Holding No.132 A, Ward No. 18
New- 24, area 15 dhurs never remained to be joint family
property, rather, it is personal acquisition of Smt. Sakuntala
Devi, widow of Sideshwar Prasad through registered deed of
1975 and hence, there is no unity of title between the parties.
8. The learned Trial Court after considering the
pleadings, evidence adduced by the parties and materials on
record, held that there is no unity of title and possession
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between the parties, thus, there could not be partition which has
already been partitioned, therefore, the plaintiffs cannot get the
suit land to be partitioned.
9. Being aggrieved by the judgment and decree of
learned Trial Court, the plaintiffs filed Title Appeal and after
hearing the parties and considering the materials on record, the
learned Additional District Judge-Ist, Nalanda reversed the
judgment and decree of the Trial Court and decreed the suit
partly. The learned Appellate Court has held that some
documents filed on behalf of the plaintiffs show the joint
transaction made by the plaintiffs after the alleged year of
partition 1980, whereas some documents adduced on behalf of
the defendants show that the plaintiffs have sold away some
properties after 1987 by reciting therein that the said properties
were allotted in their share in Khangi partition. Both the parties
did not file any documents to establish the partition by metes
and bounds amongst three brothers (co-sharers) on the specific
date and month of the year. There was no document to show as
to how much property was allotted in whose share in the
partition as alleged by the parties. There is no any document
executed by 3rd co-sharer, namely, Ganauri Mahto which could
suggest and support any partition between the parties. The said
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Ganauri Mahto died unmarried in the year 1982. There is
complete lack of any document showing the share allotted to
him (Ganauri Mahto). In the facts and circumstances, the onus
lies upon the defendants to prove the partition of the suit
property by metes and bounds because they have specifically
pleaded that earlier there was partition by metes and bounds.
10. The learned Appellate Court after analyzing the
evidence adduced on behalf of the parties and oral evidence
adduced by the defendant-appellant Kauslendra @ Indradeo
Prasad (DW-5) has found that the defendant-appellant has
deposed in his evidence that Srichand Mahto and Ganauri
Mahto were his uncles and partition took place in the year 1980
amongst his father and uncles. He has deposed that Chhotu
Mahto and Ganauri Mahto remained joint. The learned First
Appellate Court has further found that in his evidence he has not
deposed that what was the specific date and month of the year
1980 when the said partition took place. He has also not stated
that how much share was denied and allotted in whose specific
share. However, he has deposed about the share allotted only to
Srichand Mahto. On the basis of such version of the defendant-
appellant it cannot be legally believed that the partition took
place in the year 1980 by metes and bounds. DW-1 has also
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deposed in his evidence that no partition took place by giving
any ‘ridge’ or ‘alang’ in presence of him nor any measurement
was made. He was neither involved in the said partition of the
year 1980 nor he was ‘panch’ of the said partition and no any
paper was prepared in his presence. Likewise, DW-2 and DW-3
also deposed that neither they were ‘panch’ nor had joined in
any partition nor any paper of partition was prepared before
them. The learned First Appellate Court after considering the
testimony of the aforesaid witnesses of the defendants on the
point of earlier partition held that the defendant-appellant have
failed to establish the partition in the year 1980 as alleged by
them by any cogent evidence. On the contrary to this, the
plaintiffs have proved the jointness of the properties by
adducing documentary as well as oral evidence. Presumption
also lies in favour of jointness of property according to the
Hindu law. The learned Appellate Court held that the suit
property with respect to Khata No. 210, Thana No. 146
mentioned in Schedule-II of the plaint has not been partitioned
by metes and bounds earlier between the co-sharers. The
plaintiffs have also sought for partition with respect to other
three plots mentioned in Schedule-II. In this regard, there is
specific pleading of the defendants that the said properties are
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not joint family properties, rather, it is self-acquired properties
of Kauslendra @ Indradeo Prasad and Sakuntala Devi. Thus, the
onus was upon the plaintiffs to prove the fact that there was
nucleus in the joint family and from that income it was
purchased in the name of the defendants but the plaintiffs have
not stated any facts regarding nucleus and income of the joint
family at the time of purchase of the said property. The four
properties including the house at Patna cannot be said to be joint
family property because the plaintiffs have failed to prove the
nucleus and income of the joint family from which the said
properties were purchased. Therefore, the learned First
Appellate Court held that the plaintiffs and the defendant i.e.,
heirs of Chhotu Mahto both are found entitled to get half and
half share in the suit property mentioned in Schedule-II of the
plaint except Plot Nos. 3142, 3227, 3145 and house of Patna.
The properties of Khata Nos. 160 and 161 of Village-Mirzapur
as detailed in Schedule-III of written statement of the defendant
will also be partitioned in two shares. It was further directed that
the suit property or any part thereof sold by any party, earlier
will be adjusted in their respective share and set aside the
judgment of the Trial Court and allowed the appeal in respect of
the part of the suit property as mentioned above.
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11. Having considered the submissions made on
behalf of the appellant and after perusal of materials on record
including the judgment of the learned courts below, it appears
that the learned courts of appeal below, which is the final court
of facts, after considering the pleadings of the parties and
evidence adduced by them came to a clear finding that the
defendants could not prove earlier partition between the three
brothers, namely, Chhotu Mahto, Srichand Mahto and Ganauri
Mahto. Ganauri Mahto died intestate as unmarried and issueless.
So being the brother of Ganauri Mahto, Srichand Mahto and
Chhotu Mahto will jointly succeed the share of Late Ganauri
Mahto, being the full brother of Late Ganauri Mahto, as his
Class-II heirs, the share of Ganauri Mahto will be divided
between Srichand Mahto and Chhotu Mahto half and half. The
property in Khata nos. 160 and 161 of Village-Mirzapur as
mentioned in Schedule-III of written statement is divided among
Chhotu Mahto or his successor and Srichand Mahto or his
successor and they will get half and half share of the said
property. The property of Ganauri Mahto will devolve upon the
two brothers, namely, Srichand Mahto and Chhotu Mahto half
and half.
12. The legal position is well settled and the Hon’ble
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Supreme Court in the case of M.L. Subbaraya Setty (Dead) By
Lrs. vs. M.L. Nagappa Setty (Dead) By Lrs. reported in
(2002) 4 SCC 743 has held that “on mere severance of status of
joint family, the character of any joint family property does not
change with such severance. It retains the character of joint
family property till partition”. Further, in the case of Deoki
Mallah vs. Surji Mallahain and Ors. reported in (1999) 1
PLJR 199 it has been decided that “Separate in mess and
separate cultivation among the co-sharers do not mean that
there was partition by metes and bounds or separation of one of
the coparcener from the ancestral property.”
13. The defendants’ witness also did not adduce any
evidence with regard to earlier partition. The defendants have
not deposed that what was the specific date and month of the
year 1980 of partition as claimed in 1980 by the defendants.
When the said partition took place, how much share was denied
and allotted in whose specific share. DW-1 specifically deposed
in his evidence that no partition took place by giving any ‘ridge’
or ‘alang’ in presence of him nor any measurement was made.
Neither he was involved in the said partition of the year 1980
nor he was ‘panch’ of the said partition nor any paper was
prepared in his presence. Having regard to the aforesaid, the
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learned court of appeal below was quite justified in arriving at
the finding with regard to the suit property in respect of Khata
No. 210 under Thana No. 146 mentioned in Schedule-II of the
plaint that the same has not been partitioned by metes and
bounds earlier between the co- sharer and the defendant have
failed to establish the partition in the year 1980 as claimed by
them by any cogent evidence.
14. In the aforesaid facts and circumstances, this
Court does not find any illegality in the impugned judgment and
decree of the learned court of appeal below nor does it find any
substantial question of law involved in the instant Second
Appeal.
15. Accordingly, the Second Appeal is dismissed at
the stage of admission under “Order XLI Rule 11 C.P.C”.
(Khatim Reza, J)
prabhat/-
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