Bisheshwar Yadav vs Radha Kuer and Others

Shailesh Kr. Sinha

This appeal is directed against the judgment and decree dated 19th of June, 1995 in Partition Suit No. 68/1989/36/1994 passed by the 3rd Subordinate Judge, Aurangabad. The appellant has preferred this appeal being dissatisfied with the part of the aforesaid judgment, whereby relief claimed for partition of Schedule-Ill land was refused and, as such, entire details of the property under the aforesaid suit are not being repeated here. The plaintiff and the defendants are the descendants of one Chamaroo Yadav. For appreciating the matter, the genealogical table of the family as given by the plaintiff is reproduced below:

The suit land except the land mentioned in Schedule-III of the plaint have been partitioned and all the four sons of Chamaroo Yadav have 1/4th share in the joint family property. The plaintiff-appellant has no grievance; except with respect to the property mentioned in Schedule-III of the plaint, which was not subjected to partition. The court below did not allow partition of the said property which has been claimed as to be the joint family property, after the amendment of the plaint, hence the appellant has preferred this first appeal.

The land mentioned in Schedule-Ill of the plaint situates in Village-Kushi except one plot which situates in Village-Bela. Schedule-III property is quoted below:--

Schedule-III

Khesara No.

Plot No.

A-Dec

Village

3

1719

4=87

Kushi

1937

2=93

1931

0=40

1934

2=81

1935

1=43

50

1255

0=25

1976

0=08

110

106

6 Katha in Village Bela

The aforesaid property as detailed in Schedule-Ill was sold by the husband of respondent No. 7 (defendant No. 7), namely, Faguni Yadav as per the registered sale deed dated 12th April, 1973, vide Ext.-A, on a consideration of Rs. 2,000/-. The plaintiff-appellant in course of the suit sought amendment of the plaint, which was allowed incorporating the pleading to the effect that the sale of land under the aforesaid sale deed, Ext.-A, contained in Schedule-Ill of the plaint, is void as it was a fraudulent transaction without any valid consideration nor the vendor Faguni Yadav could have executed the aforesaid sale deed for being the joint family property. In other words, through the amendment of the plaint, the plaintiff claimed the aforesaid property being a joint family property could not have been sold by Faguni Yadav in favour of his wife Shakuni (Defendant No. 7 of the suit) as per the aforesaid sale deed (Ext.-A) and as such is liable to be set aside.

The court below upon considering the evidence on the record, oral as also the documentary, concluded that there is no evidence on record to substantiate the pleading of the plaintiff that the aforesaid lands of Schedule-III of the plaint are the joint family property and, therefore, refused the relief prayed for that the aforesaid property is liable to be partitioned, however, allowed the partition of rest of the properties as per the judgment under the appeal.

Mr. Jitendra Prasad Singh, Learned Counsel appearing for the appellant submits that in view of the pleading, the court below was duty bound under the law to frame the issues in terms of the provisions of Order XIV Rule 1(5) of the CPC (hereinafter referred to as "the Code"), especially in the light of the amended plaint as to whether the land in the aforesaid sale deed dated 12th of April, 1973, vide Ext.-A, forms part of the property or not. Order XIV Rule 1(5) of the Code is quoted below:--

Framing of issues:--.........................................................

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under Rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

It was also submitted that in the above situation, this Court in terms of Order XLI Rule 25 of the Code may remand the matter to the court below for consideration and deciding the matter on the issue to be framed by this Court. Learned Counsel for the appellant submits that the court below ought to have considered the fact about the existence of the jointness in the family, which is apparent from the mortgage deed dated 8th October, 1971 (Ext.-2) executed by all the brother i.e., sons of Chamaroo Yadav and son of Faguni Yadav.

Mr. Tara Nath Jha, Learned Counsel appearing for the respondents, on the other hand, submits that the question of framing of the issue in the light of the amended plaint, as contended by the Learned Counsel for the appellant, is non-issue for the reason that the parties upon understanding the pleadings of the parties adduced their respective evidences in the light of the pleadings and the court considered the matter in detail as to whether the lands under Schedule-III, which has been sold as per the aforesaid registered sale deed dated 12th of April, 1973 (Ext.-A) can be a subject-matter of partition or not and upon detailed consideration of the evidences on the record concluded that the plaintiff failed to adduce any evidence substantiating his claim that the lands under Schedule-Ill of the plaint belong to the joint family property or the said property was acquired from the common fund of the joint family, as such, held that the aforesaid property cannot be subjected to partition like other suit lands under Schedules-I and II. It was further contended that the learned court below took into consideration that while the family was joint, the members of the joint family continued to acquire the land in their individual names and also sold the same to different persons and those properties were also not made the subject-matter of partition. Like manner, the husband of defendant no. 7, namely, Faguni Yadav acquired the property in his individual capacity and also dealt with the same by executing the registered sale deed in respect of Schedule III land in favour of defendant No. 7 in the year 1973 and the said land remained in possession of defendant No. 7 since the date of purchase. It was also contended that in the consolidation proceedings before the concerned Consolidation Officer and appeal before the Deputy Director of Consolidation, the issue was agitated and upon due consideration and after examining various aspects of the matter, it was concluded by the consolidation authorities that the land under the aforesaid sale deed dated 12th of April, 1973 (Ext.-A) belongs exclusively to defendant No. 7 herein. It is further submitted that although the findings under orders/judgments in the aforesaid proceedings were not binding on the trial court, the materials which were brought on the record of those consolidation proceedings without any objection were legally open for the trial court for consideration. Accordingly, it was submitted that the relief prayed for by the plaintiff for including the property under Schedule-Ill under the partition was rightly refused and to that extent, the suit was dismissed.

Upon considering the rival submissions of the parties, it would appear that the controversy is confined to only with respect to the property mentioned in Schedule-Ill of the plaint, which was sold by Faguni Yadav in favour of Sakuni Devi (Defendant No. 7), as to whether the same can be a subject-matter of partition or not. According to the appellant, the aforesaid property was out and out a joint family property and as such, Faguni Yadav could not have executed the sale deed in favour of his wife (Defendant No. 7) in respect of the said land more so when the said sale was a fraudulent transaction without any consideration and as such void.

On the other hand, Learned Counsel appearing for respondent No. 7 contended that the plaintiff-appellant is unduly litigating the matter. Even though the plaintiff got the plaint amended and got sufficient opportunity to substantiate the allegations made in the amended plaint that the property in question was a joint family property and it was purchased out of the fund of the joint family, the plaintiff, however, failed to adduce any evidence to substantiate the above assertion save and except the general evidence.

Learned Counsel appearing for the appellant could not point out any specific evidence on record, either oral or documentary, to substantiate that the property under Schedule-III of the plaint was a joint family property or the property was acquired out of the fund of the joint family even though the plaintiff got the plaint amended making out a specific case in this regard. It was not disputed that the other members of the family while remaining in jointness also acquired the property in their individual names and dealt with them individually, which would be appearing from the evidence of D.W. 17 Keshar Yadav, brother of the plaintiff Bisheshwar.

The contention of the appellant that some of the properties were mortgaged in favour of the Bank for obtaining loan before the execution of the sale deed in question to show the family was joint is of no consequence for the reason that the family remained joint is not in dispute and, as such, it is of no help to the appellant in support of his assertion that the land under Schedule-III of the plaint, which was sold in favour of defendant no 7 also became a joint family property in absence of evidence on record. The admitted position is that while the family remained joint, the individual members of the family continued to acquire property in their individual names and also dealt with individually.

As discussed above, the parties especially the plaintiff having understood his specific case that Schedule-III land being claimed to be a joint family property purchased from the fund of the joint family, failed to adduce any evidence, oral or documentary. As both parties participated in the suit on such a controversy and the court below fully considered the matter in detail, the plaintiff cannot make a grievance that the specific "issue" was not framed by the court below and as such the matter needs to be remanded has no substance. Accordingly, the court had no option except to refuse the reliefs prayed for by the appellant for partition of Schedule-Ill land and dismissed the suit to that extent. In the above facts and circumstance of the case, I do not find any merit in the appeal. The same is, accordingly, dismissed. No costs.