Gambhir Singh and Others vs Narayan Singh and Others

Milap Chandra Jain, J.—This appeal has been filed against the order of the learned District Judge, Balotra dated July 29, 1988 by which he has allowed the application of the plaintiff-respondents and has restrained the defendant appellants from transferring the suit plot and raising construction thereon. The facts of the case giving rise to this appeal may be summarized thus:

The plaintiff-respondents have filed a suit for partition in the court of District Judge, Balotra with the allegations, in short, that a plot, shown by red colour in plain, paper No.A2/6 and described in para 4 of the plaint, is situated in Pinjaron-ka-bas, Jasol (Balotra), it is jointly owned and possessed by the parties, the defendants have refused to partition it and they are intending to sell it. The defendants have filed their reply simply admitting that the suit plot is situated in Pinjaron-ka-bas, Jasol. The remaining allegations of the plaint have been denied. They have averred that in the site plan, paper No.A2/6, also in para No. 4 of the plaint only half portion of the plot (which came in the share of the defendants) has only been shown, its western portion which came in the plaintiffs'' share on partition and given to Prithvi Raj by the plaintiffs, has not been shown and in fact joint plot had been divided, the eastern portion which is in dispute came in the share of the defendants and the Western portion came in the share of the plaintiffs which have been given to Prithvi Raj by the plaintiffs.

Along with the plaint, an application under Order 39 Rules 1 and 2 CPC was moved. The defendants filed their reply, seriously opposing it. After bearing the parties, the learned District Judge allowed the application as said above.

It has been contended by the learned counsel for the defendant-appellants that it is the admitted case of the parties that Kishore Singh (father of plaintiff No. 1 and husband of plaintiff No.2) and Ganpat Singh (husband of the defendant No.3 and father of the defendants No. 1, 2 4 and 7) were real brothers and Ex-Jagirdars. He further contended that they owned two plots jointly one situated in Baoriwala and the other in Pinjaron-ka-bas, both the plots were divided, the eastern portion of the plot situated in Pinjaron-ka-bas came in the share of defendants and the western portion came in the share of the plaintiffs which was subsequently given to Prithvi Raj Barber of Jasol, there had been litigation in respect of portion of the plot given to Prithvi Raj before the Gram Panchayat and in respect of the portion of the plot given to the defendants with Gafoor Khan before the S.D.M., Balotra. He also contended that Prithvi Raj admitted in his reply dated April 10, 1977 Paper No.C14/3, that he is in occupation and possession of the land with the permission of the Ex-Jagirdar Kishore Singh and he also contended that Prithvi Raj filed his affidavit, paper No.C14/8, Cr.P.C initiated by Gafoor Khan in respect of the disputed plot and he has disclosed in it that it is owned and possessed by plaintiff Karan Singh and his plot is just annexed to it towards the west. He further contended that the plaintiff filed a suit in the year 1984 for injunction and declaration against one Bhanwarlal in respect of a portion of the said plot situated in Baoriwala locality of Jasol and in his statement the plaintiff Narain Singh has admitted in his statement, paper No.C30/12/-18, recorded in the said suit that the plot situated in Baoriwala was partitioned in between the plaintiffs and defendants'' father Ganpat Singh. It was also contended by the learned counsel for the defendant-appellants that the learned trial court has seriously erred to hold that the said statement, paper No.C30/12-18, of the plaintiff Narain Singh cannot be looked into as he has not been confronted with it as required u/s 145, Evidence Act and the reply, paper No.C14/3, and affidavit, paper No.C14/8, statement, paper No.C.7/2 of Prithvi Raj are no help to the defendants. He contended that there is a presumption that partition has been effected in respect of all joint properties. He relied upon Article 328(2) of Mulla''s Hindu Law, para 489 of Mayne''s Hindu Law, page 219 of Gour''s Hindu Law (1980 Edition), page 397 of Gupta''s Hindu Law (1981 Edition) para 362 of Raghavachariar''s Hindu Law and page 412 of H.L.Sarkar''s Hindu Law and Tejraj v. Mohanlal, AIR 1955 Raj. 157, AIR 1934 707 (Lahore) Narmadabai Tulsiram Shet Agarwal Vs. Rupsing Bhila, Dattatraya Sitaram Kulkarni and Others Vs. Shankar Mahadji Kulkarni, Rudragouda Venkangouda Patil Vs. Basangouda Danappagouda Patil, Ramlaxmi Ranchhodlal Vs. The Bank of Baroda Ltd., Kumarappa Chetti and Others Vs. Muthuvijaya Raghunatha Muthukumara Vanangamudi Valuvatti Thevar (dead) represented by Thangammal Aeeyar, Nadiammai Achi and Another Vs. Mariappa Thevar, and Ramnagina Sah and Others Vs. Harihar Sah and Others, He also contended that it is not necessary to contradict a party u/s 145. Evidence Act with his formal statement and he relied upon Bishwanath Prasad and Others Vs. Dwarka Prasad and Others, He lastly contended that admission is the best evidence. He relied upon Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others,

The learned counsel for the plaintiff-respondents supported the order under challenge. He contended that the appellate court should be very slow in upsetting such discretionary orders of the trial court. He further contended that the trial court has taken into consideration all the aspects of the case. He lastly contended that it is not necessary under Hindu Law that all the properties should be simultaneously partitioned. He relied upon Kashinathsa Yamosa Kabadi, etc. Vs. Narsingsa Bhaskarsa Kabadi, etc.,

The trial court has observed in its order that the plaintiff Narain Singh''s statement, paper No.C30/12-18, cannot be considered to be conclusive and the position would be clear only after he is confronted with this statement. The certified copy, paper No.C30-12-18 of the plaintiff Narain Singh''s statement has been filed by the defendant to show that he has admitted in it that the other joint plot situated in Baoriwala Mohalla of Jasol was duly partitioned between the parties. Plaintiff Narian Singh''s statement on this point is quite clear. At two places, he has categorically admitted that the plot situated in Baoriwala Mohalla has been partition in between him and his uncle Ganpat Singh. It is well settled law that it is not necessary to confront a party u/s 145, Evidence Act with his previous statement. Reference of Bharat Singh and Another Vs. Bhagirathi, and Bishwanath Prasad and Others Vs. Dwarka Prasad and Others, may be made here.

The trial court has also seriously erred to hold that the reply dated April 10, 1977, paper No. C 14/3, submitted by Prithvi Raj @ Shogalal before the Gram Panchayat Jasrol, his affidavit, Paper No.C14/8 dated September 12, 1977, submitted before the S.D.M., Balotra in Criminal Case Gafoor v. Karan Singh u/s 145, Cr.P.C, statement, paper No.C17/2 of Prithviraj given in the said criminal case do not go to help the defendants. Admittedly, all these documents are ''Anti Litem Motum '' documents i.e. before the dispute arose in between the parties. It is the admitted case of the parties that two plots of land one situated in Baoriwala Mohalla and other situated in Pinjaron-ka-bas in village Jasol were the joint properties of Kishore Singh and Ganpat Singh. The defendants'' case is that both these properties were divided and the fact of partition of plot situated in Baoriwala is admitted by the plaintiff Narain Singh in his said statement, paper No.C30/12-18. It is well settled law that when partition is admitted or proved, the presumption is that all the joint properties were partitioned Kashinathsa Yamosa Kabadi, etc. Vs. Narsingsa Bhaskarsa Kabadi, etc., is not on this point. The defendants'' version that the plots situated in Pinjaron-ka-bas, was also partitioned and the portion of the plot which came in the share of Kishore Singh (Husband and father of the plaintiffs) was given by the latter to Prithvi Raj @ Bhugalal Nai finds corroboration from his reply dated April 10, 1977, paper No.C-14/3, submitted to the Gram Panchayat, Jasol and his affidavit dated September 17, 1977, Paper No.C 14/8 submitted to the S.D.M., Balotra in Criminal Case in between the defendant Karan Singh and Gafoor u/s 145 Cr.P.C. In his statement, paper No.C-17/2, Prithvi Raj has categorically stated that the ''Bara'' which is in his occupation and possession was given to him by Kishore Singh (Plaintiff''s husband and father). He also disclosed in it that the ''bara'' on which Gafoor Khan has initiated proceedings u/s 145 Cr.P.C. is annexed to his ''Bara''. According to para No.4 of the plaint, to the west of the disputed ''Bara'' is a lane and then house of Prithvi Raj Nai exists. Other documents also corroborate the defendants'' case about the partition of both the joint properties. On the contrary, the plaintiff have not filed any document to show that the joint plot situated in Pinjaron-ka-bas remained so ever after the partition of the other joint plot situated in Baoriwala Mohalla. In view of these facts and circumstances, it is very difficult to endorse the view of the learned District Judge, Balotra that the plaintiffs have been able to establish a prima facie case in their favour.

Under the facts and circumstances of the case, the balance of convenience is in favour of the defendants. They would suffer irreparable injury if they are not allowed to raise construction on the disputed land particularly when negotiations are going on with the Bank to let out the building after constructing it on half the portion of the disputed land.

Consequently, the appeal is allowed with costs. The order of the learned District Judge, Balotra dated July 29, 1988 is set aside. The application of the plaintiff-respondents moved under Order 39 Rules 1 and 2 CPC is dismissed.