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Judgment
Vijayendra Nath, J.—Heard Mr. S.S. Dwivedi, the learned senior counsel appearing on behalf of the appellants and Mr. Bhupendra Narayan Sinha, the learned counsel for the respondents.
The defendants in the suit are the appellants in this appeal assailing the judgment and decree passed in T.A. No. 108/97 by learned Additional District Judge-X, Patna on 08.03.2001 affirming the judgment and decree dated 18.08.1997 by learned Sub Judge I, Patna in T.S. No. 522/92 decreeing the suit.
The plaintiffs filed the suit praying for declaration of title and recovery of possession over the suit property described in Schedule I of the plaint.
The matrix of facts, emanating from the records, shows that four holdings numbered as 257, 258, 258A and 259 on Survey Plot No. 644 at Frazer Road, Patna undisputedly belonged to Sardar Harnam Singh and his family consisting of his wife Shanti Devi @ Santosh Kuer and two sons Sardar Gurjeet Singh and Sardar Jasbir Singh. These four holdings are contiguous to each other and Holding No. 257 is a 5 storied building in which there is a hotel in the name and style Capital Hotel. The Holding No. 259 consists of a residential building. There is no dispute between the parties over these two holdings. The building over Holding No. 258 is 5 storied from ground floor to 4th floor and out of this holding, another Holding No. 258A has been admittedly carved out. It is not in dispute between the parties that a hotel by name and style Pradeep Hotel has been running in this building in its ground, 1st and 2nd floor.
Soon after the death of Sardar Harnam Singh, there was a private partition between his two sons namely Sardar Gurjeet Singh and Sardar Jasbir Singh and a partition deed was prepared on 01.08.1980 in Urdu and English which was signed by the two sons. Their mother Shanti Devi @ Santoshi Kuer did not join the partition. At this juncture, it would be pertinent to mention that the plaintiffs claim to be purchasers of the Holding No. 258 by three sale deeds dated 26.12.1989 and 28.12.1989 (Ext. 8 Series) from one brother Sardar Gurjeet Singh whereas the defendants claim to be purchasers of the entire Holding No. 257 and 258A from Sardar Jasbir Singh. The note of discord, between the plaintiffs and defendants is over the location and position of the area of Holding No. 258 including the suit land and Holding No. 258A respectively purchased by them inasmuch as the plaintiffs claim that the area/rooms of the Holding No. 258 consists of the entire ground floor, 1st floor and 2nd floor in the building which has been allotted in partition to the exclusive share of their vendor Sardar Gurjeet Singh and purchased by the plaintiffs in the year 1989 whereas the defendants claim that the area/rooms of the holding no. 258A are variously located from ground floor up to 4th floor in the building which has been allotted to the excusive share of their vendor Sardar Jasbir Singh and purchased by them in the year 1992.
Shanti Devi @ Santosh Kaur, widow of Sardar Harnam Singh and mother of Sardar Gurjeet Singh and Sardar Jasbir Singh filed T.S. No. 436/1988 in the court of Sub Judge 1st, Patna, impleading her two sons as defendants seeking for declaration that the defendant no. 1 was not entitled to dispose of the suit properties described in Schedule I of the plaint as he had no right and title over the same and further for permanent injunction restraining him from alienating and transferring the suit properties. After rejection of her prayer for grant of ad interim injunction, she filed Misc. Appeal No. 43/1989 before the Hon''ble High Court, Patna. During the pendency of the appeal, the parties to the appeal namely Smt. Shanti Devi (Appellant) and her two sons Sardar Gurjeet Singh and Sardar Jasbir Singh (respondents) entered into compromise and filed a compromise petition on 21.05.1992 in the said appeal. By order dated 22.05.1992 the said compromise petition was accepted and the appeal was disposed of in terms thereof directing the same to form part of the order.
As earlier mentioned, in the present suit the plaintiffs have claimed their exclusive title over the suit land located on the ground floor, 1st floor and 2nd floor of the building on the basis of their purchase from Sardar Gurjeet Singh in the year 1989 on the premise that the Holding No. 258 exclusively comprised these three floors and had been exclusively allotted to the share of their vendor Sardar Gurjeet Singh. The recovery of possession over the suit land which is part of these three floors and said to be in forcible possession of the defendants has also been prayed. The defendants have resisted the plaintiffs'' claim by putting forward the case that the area/rooms of Holding No. 258A, carved out of original Holding No. 258 is included in ground floor upto 4th floor of the building and has been exclusively allotted to their vendor Sardar Jasbir Singh in partition. The defendants have thus claimed their title and possession over the suit land on the basis that, though the same is located in ground floor, 1st floor and 2nd floor of the building but is included in Holding No. 258A. The singular question which thus arose for determination in the suit was as to whether the partition between the three co-sharers in the five storied building over original Holding No. 258 was effected floorwise or roomwise. The compromise petition filed in Misc. Appeal No. 43/1989 also directly fell for consideration as both the plaintiffs and the defendants relied on the same in support of their respective stands besides other evidence.
The trial court after scrutinizing the pleadings and evidence of the parties came to the finding that Sardar Gurjeet Singh, the vendor of the plaintiffs, was allotted ground floor to 2nd floor of the building comprised in Holding No. 258, and the 3rd floor and 4th floor of the building comprising Holding No. 258A had been allotted to Sardar Jasbir Singh (defendant). It was further found that the suit land described in Schedule I of the plaint was part and parcel of Holding No. 258. The plaintiffs were, thus, granted the decree for declaration of title and recovery of possession as prayed.
In appeal by the defendants, the appellate court below after reappraisal of the evidence on record, while affirming the findings of the trial court repelled the specific contention raised by the defendant-appellants that the contents of compromise petition to which the earlier partition deed dated 01.08.1980 and its Hindi translation were attached actually disclosed the acceptance of the earlier partition between the parties of the building over original Holding No. 258 which was roomwise. The appellate court came to the conclusion that the building over original Holding No. 258 was partitioned floorwise and the ground floor, 1st floor and 2nd floor of the building over the said holding were allotted to Sardar Gurjeet Singh, and its 3r and 4th floor were allotted to Sardar Jasbir Singh with life time interest to the mother Shanti Devi over three rooms on the fourth floor. The appeal was, therefore, dismissed by the impugned judgment and decree in this appeal.
This second appeal has been admitted for hearing on the following substantial questions of law:-
(i) Whether the courts below committed error in not considering the legal status of Ext. D the compromise petition filed in Misc. Appeal before this Court?
(ii) Whether the courts below committed error in not construing the harmonious construction of the two documents i.e. the compromise petition and the agreement of 1980?
(iii) Any other substantial question of law that may be raised during the hearing of the appeal?
Assailing the impugned judgments and supporting the substantial questions of law, Mr. Dwivedi, the learned senior counsel for the appellants has submitted that both the courts below fell in error in not venturing for harmonious construction of the contents of the partition deed dated 01.08.1980 and the compromise petition dated 21.05.1992. It has been urged that the fact of the earlier partition on 01.08.1980 of the family properties has been admitted by the plaintiff in paragraph-6 of the plaint and the three co-sharers also accepted the said partition in the compromise petition filed by them before the High Court and even annexed the agreement (partition) deed dated 01.08.1980 and its Hindi translation with the compromise petition. According to the learned senior counsel, the inference, therefore, is inevitable that the three co-sharers accepted the partition in the year 1980 as fait accompli and through the compromise petition, they, in fact, had only acknowledged that partition. It has been canvassed that the recitals in the compromise petition clearly disclose the intention of the co-sharers to accept the partition made in the year 1980 and there is nothing in the recitals which can be said to have nullified the earlier partition. Elaborating his submissions, the learned senior counsel has further contended that the copy of the assessment register of the Patna Municipal Corporation brought on record as Ext. I also corroborates the fact that the area/rooms comprising Holding No. 258A are located from the ground floor up to 4th floor of the building and the entries therein was made on 28.11.1984 in the name of Sardar Jasbir Singh against which no objection was ever raised. It has been finally submitted that in the facts and circumstances of the case, the interpretation of the statements in the compromise petition (Ext. D) is the core question arising for determination in this appeal. The learned senior counsel has also extensively placed the evidence on record in order to highlight his portrayal of the statements in the compromise petition (Ext. D).
Mr. Sinha, the learned counsel for the respondents, however, has submitted that this appeal does not involve any substantial question of law for determination in view of the concurrent findings of fact by the courts below. It has been argued that the compromise petition filed in the misc. appeal before the High Court is the only document of partition which the admitted three co-sharers had executed ad idem, and the fact that the mother Smt. Shanti Devi agreed to put her signature on the previous partition deed dated 01.08.1980 could not validate the same with retrospective effect unless the parties expressly agreed to do so. It has been submitted that in this background it cannot be said that by the compromise petition the three co-sharers only intended to give effect to the partition effected in the year 1980 and did nothing more. The learned counsel has thus propounded that the partition deed attached to the compromise petition cannot be said to override the compromise petition itself even to the extent of annihilating the unambiguous terms of partition emanating therefrom. It has been argued that the intention of the parties must be gathered from the recitals of a deed keeping in view the surrounding circumstances and the conduct of the parties, and in the present case if it would have been the intention of the three co-shares to accept the partition as evidenced by the partition deed dated 01.08.1980, they would have done it straightway by stating so in the compromise petition and would not have come out with the statements disclosing the manner of partition inconsistent with the recitals in the partition deed. The learned counsel has placed the evidence in detail in order to buttress his submissions.
After considering the facts of the case and contentions on behalf of the parties, it is transparent that the conundrum which is in cauldron in this appeal is the manner of partition of the building over original Holding No. 258 out of which Holding no. 258A has admittedly been carved out. The rival claim of the parties over the suit land is squarely based upon their respective versions of manner of partition of the said building between the three admitted co-shares, and both the parties have primarily relied on the compromise partition (Ext. D) filed by the three co-sharers in Misc. Appeal no. 43/1989 before this Court.
Admittedly, after the death of their predecessor Sardar Harnam Singh, his widow Shanti Devi @ Shantoshi Kaur and his two sons namely Sardar Gurujeet Singh and Sardar Jasbir Singh were left with the five storied building over Holding No. 258 (out of which Holding No. 258A has been carved out) alongwith another five storied building over Holding No. 257 and a residential building in Holding No. 259. It is also admitted that in the building over Holding No. 257, a hotel under the name and style Capital Hotel is running and in the building over Holding No. 258 another hotel in the name and style Pradeep Hotel is running. There is no dispute with regard to Holding No. 257 with Capital Hotel therein which is accepted to have been allotted to Sardar Jasbir Singh exclusively, and the residential house over Holding No. 259 which is accepted to have been allotted to Sardar Gurujeet Singh exclusively. Controversy centers around the location and position of the shares of the three co-sharers in the building on original Holding No. 258 wherein Pradeep Hotel (now named as Magadh Hotel) is running. It has, however, been also admitted that Pradeep Hotel is running in the ground floor, first floor and second floor of the building and has been allotted to the share of Sardar Gurjeet Singh who is the vendor of the plaintiffs. It is also not in dispute that the suit land is part of the ground floor, first floor and the second floor of the building. The case of the plaintiff who is purchaser of Pradeep Hotel from Sardar Gurujeet Singh by three registered sale deeds in the year 1989 (Ext. 8 Series) is that Pradeep Hotel is running on the ground floor, 1st floor and 2nd floor of the building and the entire area of these three floors has been allotted to their vendor Sardar Gurujeet Singh. Contesting the said fact the case of the defendants is that the entire area of the ground floor, 1st floor and 2nd floor in the building was never allotted to Sardar Gurjeet Singh and Pradeep Hotel is not running on the entire area of ground floor, first floor and second floor of the building. It is the specific case of the defendants that their vendor Sardar Jasbir Singh was also allotted the area, which is the suit land, on the ground, first and second floor of the building in addition to the entire area of the third floor and fourth floor of the building and the mother Shanti Devi was given life time interest over three rooms on the fourth floor. The defendant''s further case is also that the new Holding No. 258 A has been created in the name of their vendor Sardar Jasbir Singh and consists of the area and rooms on all the floors of the building which have been allotted in his share and the suit land described in Schedule-I of the plaint is the part of Holding No. 258A.
Both the plaintiffs and the defendants also accept that there had been a private partition on 01.08.1980 between the two brothers namely Sardar Gurujeet Singh and Sardar Jasbir Singh whereby, according to the plaintiffs, Sardar Gurujeet Singh was allotted the ground floor, 1st floor and 2nd floor of the building over Holding No. 258 and the remaining floors i.e. 3rd floor and 4th floor were allotted to Sardar Jasbir Singh but the version of the defendant is that in the said private partition, the 17 rooms out of 46 rooms on all the floors were allotted to Sardar Jasbir Singh and only 26 rooms located on ground floor, 1st floor and 2nd floor were allotted to Sardar Gurujeet Singh. To substantiate this stand, the defendants have strongly put reliance on the deed of agreement (partition) dated 01.08.1980 which has been attached alongwith its Hindi translation with the compromise petition (Ext. D) filed in Misc. Appeal No. 43/1989 before this Court. This agreement deed dated 01.08.1980 was not executed by the third co-sharer Smt. Shanti Devi, and it is also evident from the averments made in paragraph -5 of the compromise petition (Ext. D) that she had no knowledge of the said partition or the deed of agreement dated 01.08.1980 prior to the filing of the suit or appeal by her.
It is not in dispute that Smt. Shanti Devi had filed T.S. No. 436/1988 before the Court of Sub Judge 1st, Patna impleading her two sons namely Sardar Gurjeet Singh and Sardar Jasbir Singh as defendants and praying for declaration that the defendant no. 1 had no right to dispose of the suit properties which included the building on Holding no. 258 and for permanent injunction. After refusal of the prayer for grant of interim injunction in the said suit, she preferred Misc. Appeal No. 43/1989 before the Hon''ble High Court. The three co-sharers (parties to appeal) compromised their dispute and the Misc. Appeal No. 43 of 1989 was disposed of by order dated 22.05.1992 in terms of the compromise petition (Ext. D) filed by the parties to the appeal. From the averments made in paragraph-4 of the compromise petition (Ext. D), it transpires that Smt. Shanti Devi (appellant in the misc. appeal) had agreed to accept and sign the deed of agreement (partition) dated 01.08.1980. The deed of agreement (partition) dated 01.08.1980 is written in Urdu and English and has been annexed with the compromise petition (Exd. D) as Annexure-1 alongwith its Hindi translation as Annexure-1/A.
From the perusal of the recitals in this deed of agreement (partition) dated 01.08.1980, it transpires that there were total 43 rooms in original Holding No. 258 out of which 26 rooms were allotted to the share of Sardar Gurujeet Singh and 17 rooms were allotted to the share of Sardar Jasbir Singh and further the three rooms on the 5th floor wherein Smt. Shanti Devi was residing had been allotted to her for her lifetime. Pertinently, however, there is nothing in the recitals of this deed to indicate the location and position of the 17 rooms either floorwise or otherwise which had been allotted to the share of Sardar Jasbir Singh but with regard to the 26 rooms allotted in the share of Sardar Gurjeet Singh it had been stated that Pradeep Hotel would run in those 26 rooms. It would be relevant to mention here that Pradeep Hotel (now named Magadh Hotel) is admittedly running on the ground floor, 1st floor and 2n floor of the building. The contents of this deed of agreement (partition) does not disclose that 17 rooms allotted in the share of Sardar Jasbir Singh (vendor of the defendants) were variously located on the ground floor, 1st floor and 2nd floor of the building and the ambiguity in this regard is palpable.
By juxtaposing the recitals in the deed of agreement (partition) with the statements made in the compromise petition (Ext. D), the intention of the parties to the manner of partition of their properties becomes clearly depicted. The fact that the deed of agreement (partition) came to be attached with the compromise petition (Ext. D), in all probability, demonstrates the intention of the three co-sharers, only to acknowledge the said fact of partition between the two co-sharers, and thereafter to specify the location and position of their respective shares in view of the subsequent events and give a quietus to their differences. The conduct of the three co-sharers and the circumstances existing before the filing of the compromise partition (Ext. D) which got prominent reflections in the statements in the compromise partition will certainly be the guiding factors to gather the intention of the three co-sharers.
The facts that one of the three co-sharers Smt. Shanti Devi did not join the earlier partition; that she filed a suit for permanent injunction against her two sons for restraining the alienation of the family property; that the sale of the part of the building in dispute by one of the co-sharers Sardar Gurjeet Singh and the title and possession of the purchasers over the sold property was acknowledged and accepted by the co-sharers, have all been mentioned in the compromise petition as follows:-
Para 3- That with the intervention of the well wishers and the common friends of the families, the parties are agreed to settled their all dispute and divide their properties, peacefully, for the benefit of the parties and their family members.
Para 6- That old Holding No. 203, upon which the present four storied building is standing, divided into new Holding No. 258 from ground floor to second floor known as ''Pradeep Hotel'', and other new holding no. 258 A from third floor to fourth floor, known as capital Hotel, situated at Frazer Road, Patna.
Para 7-That the parties are agreed to divide all the properties including the suit properties standing upon Holding No. 258, 258(A), 257 and 259 and take the share according to the agreement deed.
Para 8- That according to agreement the building known as ''Pradeep Hotel'' standing on the New Holding No. 258 up to ground floor to second floor, and the buildings of Holding No. 259 allotted to Sardar Gurjeet Singh (respondent no. 1) and others had no right and title on the same.
Para 9- That the building known as Capital Hotel upto third floor to fourth floor standing on new Holding No. 258(A) and the other building of old Holding No. 991/New Holding No. 257, allotted to Sardar Jasbir Singh (respondent no. 2). Both the buildings are situated at Frazer Road, Patna, other has no right and title over the same.
Para 10- That Smt. Shanti Devi (Appellant) entitled to receive income of three rooms of the fourth floor of Capital Hotel under Holding No. 258A, till her lifetime and after her death the Sardar Jasbir Singh (respondent no. 2) is only entitled to get the income and got the title of the said rooms. The Sardar Gurjeet Singh has got no right or title over the three rooms either during the lifetime or after the death of his mother Shanti Devi.
Para 12- That the parties are agreed to accept the right and title of the parts over the shares attached to each of them under the compromise.
Para 13- That Sardar Gurjeet Singh (respondent no. 1) has sold the entire building of Holding No. 258(Building under dispute) and Holding No. 259 to different persons by executing the registered sale deeds and the purchasers are came in possession over the same. The purchaser of Holding No. 258 has right to come on Holding No. 258A, for repairing the water tanker only, if when required.
Para 14- That the plaintiff/appellant is agreed to withdraw the T.S. No. 436/1988, pending in the Court of Sub Judge VIII, Patna after disposal of this Misc. Appeal.
The aforesaid statements in the compromise petition unmistakably indicates that there was no facile acceptance by the three co-sharers of the earlier partition by the deed of agreement (partition), as has been tried to be made out by the defendant-appellants. The contents of the compromise petition rather are more in conformity with the proposition that the three co-sharers, in view of the dispute between them relating to their rights over the family property due to grey areas left by the previous partition, had redefined and adjusted their rights. This Court, therefore, discerns a palpable fallacy in the submission on behalf of the defendant-appellants that the terms of partition of the family property as contained in the compromise petition should be interpreted only as acceptance of the previous partition and any variation or modification thereto should not be countenanced.
Examining this nodus from another angle, it is apparent that there is no explanation in the written statement diluting the categorical statements made by the three co-sharers in the compromise petition. Even Sardar Jasbir Singh, the vendor of the defendants, in his deposition as D.W.-5 has accepted to have put his signature on the compromise petition (Ext. D) after fully understanding the contents therein. There is no word in his deposition indicating that he put his signature on the compromise petition with the understanding that it was only by way of reiteration of the partition effected by the agreement deed dated 01.08.1980 although even in face of the compromise petition (Ext. D) on record and contrary to the statement therein he has come to state that there is no mention in the compromise partition that ground floor, first floor and second floor would be in the share of Gurjeet Singh and the third floor and fourth floor would be in his share. Further this witness has also not stated that his brother Sardar Gurjeet Singh has transferred the property to the plaintiff in excess of his allotted share in the building in dispute. It is evident from his deposition, therefore, that he has raised no grievance against the specifically allotted share in the building in question to the three co-sharers as disclosed in the compromise petition and has also not stated that he ever intended not to abide by those terms of partition.
On behalf of the defendants, the defendant no. 2 Niyamuttallah has deposed in the suit as D.W. 10. It is noteworthy that he has nowhere claimed to have purchased the share of Sardar Jasbir Singh allotted to him in accordance with the previous partition on 01.08.1980, and even in the sale deeds of the defendants also there is no reference to the said previous partition. This witness in paragraph 41 of his deposition has stated that in the compromise petition, Sardar Gurjeet Singh was allotted the area from ground floor to second floor in the building in question. Further in paragraphs 31, 32, 33 and 42, this witnesses has accepted that prior to purchasing the property from Sardar Jasbir Singh, he had come to know that Sardar Gurjeet Singh had already sold Pradip Hotel of his share from ground floor to second floor to the plaintiffs who was in possession of the same.
At this juncture, it would be fruitful to recapitulate that the plaintiffs have purchased the share of Sardar Gurujeet Singh in Holding No. 258 by three registered sale deeds dated 26.12.1989 and 28.12.1989 (Ext. 8 Series) which were executed during the pendency of the T.S. No. 436/1988 and Misc. Appeal No. 43/1989 filed by Smt. Shanti Devi. On the other hand, the defendants have purchased the share of Sardar Jasbir Singh and Smt. Shanti Devi by four registered sale deeds (Ext. 8 series) in between 07.07.1992 to 14.07.1992, after the disposal of the Misc. Appeal No. 43 of 1989 on 22.05.1992 on compromise.
The statements in the compromise petition demonstrate that there is categorical recital in paragraph -13 that Sardar Gurujeet Singh (vendor of the plaintiffs) had sold the entire building of Holding No. 258 and Holding No. 259 to different persons by executing the registered sale deeds and the purchasers have come in possession over the same. It has been further mentioned that the purchaser of Holding No. 258 had the right to come on Holding No. 258A for repairing the water tanks only when required. Thus the purchase of Holding No. 258 by sale deeds in the year 1989 has been recognized and accepted by the three co-sharers through the compromise petition and coupled with the averment made in paragraph-6 and 8 of the compromise petition that the Holding No. 258 is comprised of the ground floor, 1st floor and 2nd floor of the building and the Holding No. 258A is comprised of the 3r and 4th floor of the building, there appears to be no substance in the proposition on behalf of the defendant-appellants that the area/rooms of Holding No. 258A also extend to ground floor, 1st floor and 2n floor of the building instead of being confined to only the 3rd floor and 4th floor. The conclusion therefore appears to be readily forthcoming that the three co-sharers finally settled their dispute by deciding the manner and terms of partition of the family properties between them through the compromise petition and the reference to the previous partition and attachment of the deed of agreement (partition) dated 01.08.1980 with the compromise petition can, by no stretch be taken to be the unqualified acceptance of the previous partition.
While elaborating the principles relating to construction of a deed, the five Judge Bench of the Apex Court in the case of Ramkishore Lal Vs. Kamal Narain, has ruled as follows:
"... The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances...................................................
It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void..."
Taking the cue from the aforesaid dictum by the apex court and applying the principles delineated therein to the facts of the present case where there are two transactions of partition between the three co-sharers with regard to the same property, there appears no impediment, after considering the surrounding circumstances including the vagueness and grey areas in the earlier partition by the two co-sharers alone, the dispute regarding the said property having been raised in court by the 3rd co-sharers subsequently and the conduct of the three co-sharers in entering into a compromise to resolve their all disputes by filing a compromise petition containing the terms of the partition after taking into notice the earlier partition also, to reach to the conclusion that the three co-sharers intended the terms of the compromise partition to prevail and govern their rights to the property. The legal inclination would thus be to accept the terms of the compromise mentioned in the compromise petition (Ext. D) as final settler of the disputes between the co-sharers with regard to manner of partition of their shares in the family property and to reject the stand of the defendants that the terms of the deed of agreement (partition) has alone been agreed by the three co-sharers to prevail.
In the present scenario, the fact also cannot be ignored that the purchase of the property by the plaintiffs by three registered sale deeds has been made in the year 1989 i.e. three years prior to the filing of the compromise petition by the three co-sharers in the High Court, Patna on 21.05.1992 wherein the purchase by the plaintiffs has been expressly accepted and acknowledged by all the three co-sharers. There is no pleading or evidence on behalf of the defendants that their vendor ever objected to the transfer of the property by one co-sharer through the sale deeds in favour of the plaintiffs. The three sale deeds (Ext. 8 Series) of the plaintiffs, executed by Sardar Gurujeet Singh and his sons, together disclose transfer of the building known as M/s. Pradeep Hotel up to 2n floor bearing Holding No. 258 Circle No. 6, Ward No. 2 under Patna Municipal Corporation.
The recitals in the sale deeds (Ext. F Series) on the basis of which the defendants'' claim to have purchased Holding No. 258A from Sardar Jasbir Singh, however, depict altogether a different picture. It is the case of the defendants that by 4 sale deeds dated 07.07.1992-14.07.1992 the entire allotted share of Sardar Jasbir Singh in Holding No. 257 and 258A have been purchased together by four brothers of the defendants in their individual names. The perusal of the recitals of the four sale deeds show that there is no mention of the earlier private partition between the two co-sharers of the property but there is mention of the compromise petition and the partition among the three co-sharers on that basis. It would be fruitful to notice here the relevant recitals in the sale deed dated 14.07.1992(Ext. F/1) as follows:-
The aforesaid recital in the sale deed Ext. F/1 is entirely in accordance with terms of the compromise whereby Sardar Jasbir Singh has been allotted in his share the 3rd floor and 4th floor of the building carved out as Holding No. 258A, and further also supports the case as pleaded by the plaintiffs. There is no explanation by the defendants or their vendor Sardar Jasbir Singh, examined as a witness on behalf of the defendants, contradicting or denying the aforesaid recital. Though in other three sale deeds (Ext. F, F/2 and F/3) in favour of the defendants there is statement of allotment of some share to the vendor Sardar Jasbir Singh in ground floor up to 2nd floor also of Holding No. 258 but in view of the undisputed terms of the partition as disclosed from the statements in the compromise petition (Ext. D) and absence of explanation with regard to the aforesaid recital in the sale deed (Ext. F/1), it is not far to seek that those statements and the contrary case pleaded on behalf of the defendants have been built up for the purpose of litigation only and there is no substance in the same.
For the reasons and discussion aforesaid, it is held that the three co-sharers of the building in dispute finally settled their disputes and effected partition of their shares therein in accordance with the terms contained in compromise petition (Ext. D) and they never intended that the partition made by the deed of agreement (partition) dated 01.08.1980 between the two co-sharers (and subsequently joined by the remaining co-sharer) would remain unmodified and continue to govern their rights in the building in dispute. Both the courts below, though for varying reasons, have rightly come to the conclusion that the final partition of their properties have been effected by the three co-sharers in the manner as disclosed in the compromise petition and the same is to prevail and bind them or their purchasers. Both the courts below have reached to the right conclusion that the suit land falls within the area purchased by the plaintiffs who have got title over the same and the defendants have no right to remain in possession over the same.
The substantial questions of law as framed are answered accordingly, against the appellants. This appeal is, therefore, dismissed and the judgment and decree passed in favour of the plaintiff-respondents is affirmed. In the facts and circumstances of the case, there shall be no order as to cost.