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Judgment
This second appeal preferred by the appellants herein / defendants No.14 to 16 & 18 was admitted for hearing by formulating the following substantial questions of law:-
"1. Whether the frst appellate Court was justifed in decreeing the suit in favour of the plaintiff particularly when the plaintiff himself has not been examined before the Court below to establish his case?
Whether the fnding of the frst appellate Court in passing the judgment in favour of the plaintiff on the ground that all the defendants have not been examined is legally justifed or not?"
(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the plaint before the trial Court.)
The suit land bearing Khasra No.41, area 0.11 acre, was admittedly granted on patta jointly in favour of the plaintiff's father Aasharam, defendant No.10 Bhakla, defendant No.11 Jagat, defendant No.12 Sonsai and defendant No.19 Khorbahra through chakbandi held in that village under the applicable revenue law. It is the case of the plaintiff that though the suit land was granted jointly to all of them as mentioned, but after 4-5 years of chakbandi, on partition, the suit land fell in his share and he is in exclusive possession, therefore, he is the title-holder and possession-holder of the suit land and is entitled for declaration and as such, except Bhakla, Jagat, Sonsai and Khorbahra, others be restrained from interfering with his peaceful possession which was opposed by the defendants stating that no such partition ever took place and the property is the joint family property in which all are in possession and the said property is being used as barn land (kothar) - land which is used for storing / stocking animal food and harvested crops.
The trial Court upon appreciation of oral and documentary evidence on record, dismissed the suit holding that the suit land was granted on patta through chakbandi to the plaintifffs father, defendants No.10 to 12 and 19, but the fact of partition has not been proved by the plaintiff, as the plaintiff himself has not entered into the witness box to prove the fact of partition which the frst appellate Court did not agree and relying upon the statement of Jaklaram (PW-2) reversed the judgment & decree of the trial Court resulting into fling of this second appeal by defendants No.14, 15, 16 and 18, in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment.
Mr. Abhijeet Mishra, learned counsel appearing for the appellants / defendants No.14, 15, 16 and 18, would submit that though the property was jointly allotted on patta through chakbandi held in the village, but thereafter, it is the case of the plaintiff that the suit land fell in his share. He would further submit that the plaintiff has not brought any documentary evidence to prove the fact of oral partition and oral partition is not proved by the plaintifffs three witnesses, as such, the frst appellate Court is absolutely unjustifed in setting aside the judgment & decree of the trial Court dismissing the suit.
Mr. Pallav Mishra, learned counsel appearing for the LRs of the plaintiff, would support the judgment & decree of the frst appellate Court and oppose the submissions of learned counsel for the appellants herein and would submit that the frst appellate Court has rightly taken the view that the suit land fell in the share of the plaintiff on partition.
I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
It is undisputed fact that the suit land through chakbandi held in the village under the relevant revenue law fell in the share of plaintifffs father Aasharam, defendants No.10 to 12 and 19, jointly, vide chakbandi patta (Ex.P-1), but it is the case of the plaintiff that after chakbandi, the suit land fell in his share on mutual partition between them. But in order to prove the fact of partition, no documentary evidence was brought on record and so far as oral evidence is concerned, the plaintiff did not enter into the witness box to prove the fact of partition. He reposed complete confdence on his son Aghnoo (PW-1) who in para 11 of his evidence has candidly admitted that he does not know anything about partition. Now, the two witnesses of the plaintiff who are Jaklaram (PW-2) and Paltan (PW-3) and who deposed in favour of the plaintiff remain. Jaklaram (PW-2), who is brother of the plaintifffs father aged about 55 years, has simply stated that on partition the suit land fell in their share, but he did not state anything about the fact of partition, whether it is oral or documentary and when the partition took place, even he did not state about the source of information about partition. Paltan (PW-3) also did not state anything about partition. Even he has admitted the possession of the plaintiff as well as defendants No.10 to 12 and 19 and has stated about the fact of joint possession of all including the defendants. In these circumstances, non-examination of the plaintiff remains important.
In the matter of Vidhyadhar v. Manikrao and another (1999) 3 SCC 573, the Supreme Court has held that adverse possession has to be drawn against a party to the suit, who does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side. It has been observed as under: -
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh AIR 1930 Lah 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR 1931 Bom 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat AIR 1970 MP 25 also followed the Privy Council decision in Sardar Gurbakhsh Singh case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath AIR 1971 All 29 held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand AIR 1974 P&H 7 drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter into the witness-box."
The proposition of law laid down in Vidhyadhar (supra) has been followed with approval by the Supreme Court in the matter of Man Kaur (Dead) by LRs. v. Hartar Singh Sangha (2010) 10 SCC 512. Even otherwise, the plaintiff must succeed or fail on his own case and cannot take advantage of weakness in the defendantfs case to get a decree.
As such, in the present case, the plaintiff did not adduce any documentary evidence to prove the fact of partition when admittedly, the property is jointly held and parties are in joint possession of the suit land. The plaintiff also did not adduce any oral evidence to prove the fact of partition and did not offer himself to be cross-examined by the other side. The witnesses PW-1 to PW-3 already examined either did not state about the fact of partition or did not know about the source of information of the alleged partition. As such, the frst appellate Court is absolutely unjustifed in holding that the suit land fell in the share of the plaintiff on partition. The fnding recorded by the frst appellate Court that the suit land fell in the share of the plaintiff on partition is perverse and contrary to the evidence available on record.
Accordingly, the judgment & decree of the frst appellate Court is set-aside and that the trial Court is restored. The substantial questions of law are answered accordingly and the appeal is allowed leaving the parties to bear their own costs.
Decree be drawn-up accordingly.