Sunaina Devi vs Ram Narayan Prasad and Others

Mungeshwar Sahoo, J.—The plaintiff has filed this Second Appeal against the judgment and decree of the lower appellate court dated 17.04.2002 passed by the learned 8th Additional District judge, East Champaran, Motihari in Title Appeal No. 24 of 1999 whereby the learned lower appellate court allowed the appeal and set aside the trial court judgment and decree dated 17.02.1999 passed by the learned Subordinate Judge-7, East Champaran, Motihari in Title Suit No. 52 of 1990/95 of 1998. The plaintiff-appellant had filed the suit for declaration of the deed of partition dated 15.12.1987 as forged document obtained fraudulently by intoxicating Paspati Ram (the original plaintiff) and which is not binding on the plaintiff. The plaintiff has also sought relief to pass a decree of partition to the extent of share of the plaintiff i.e. 1/4th share in the suit property according to the decision of Panches dated 26.12.1989.

The plaintiff claimed the aforesaid relief alleging that Banka Sah was the common ancestor, who had four sons, namely, Lakhan Sah, Paspati Ram, Nathuni Prasad and Ram Narayan Prasad. Paspati Ram was the plaintiff and the descendents of other sons are the defendants. The plaintiff demanded partition, therefore, with consent of the defendants, a paper was prepared giving 1/4th share to each son. They agreed that the partition deed should be registered and it was registered also. During the course of preparation of document, Paspati Ram (the original plaintiff) was intoxicated and in the state of intoxication, the deed of partition dated 15.12.1987 was signed by this plaintiff without knowing the facts written in that document, therefore, the suit was filed for declaration that the document is forged document obtained from the plaintiff in intoxicated condition. Subsequently Panchayati was held and the Punches declared the deed of partition as a void document. However, the defendants declined to make the partition afresh.

The contesting defendants appeared but they did not file any written statement nor they cross-examined any of the witnesses produced by the plaintiff.

The trial court on the basis of evidence held that the deed of partition dated 15.12.1987 was got executed by playing fraud upon Paspati Ram, the original plaintiff. Accordingly, the plaintiff's suit was decreed. Thereafter the defendants filed Title Appeal before the lower appellate court. The lower appellate court considering the evidences of the witnesses of plaintiff at paragraph 20 held that partition deed (Ext. 3) is admitted and it was acted upon and, therefore, Ext. 3 is genuine. There is lack of sufficient evidence of intoxication on the date of execution of the said document. The lower appellate court, therefore, set aside the finding of the trial court and dismissed the plaintiffs suit for partition.

At the time of admission of the Second Appeal on 08.01.2008 the following substantial question of law was formulated:

Whether the appellate court was justified in dismissing the suit for partition filed by the plaintiffs when the defendants neither filed any written statement nor cross-examined the witnesses adduced on behalf of the plaintiffs.

The learned counsel Mr. Abbas Haider appearing on behalf of the appellant submitted that the plaintiff adduced evidence in support of the fact that the plaintiff Paspati Ram was habitual drunkard and the document was executed in the state of intoxication. The plaintiff did not read the contents of the document (Ext. 3) and in fact in Ext. 3 i.e. the registered partition deed, less area was given to the plaintiff. Subsequently, there was a Panchayati wherein it was declared that Ext. 3, the registered deed of partition, is void document, therefore, the plaintiff claimed partition to the extent of 1/4th share. Considering all these aspects of the matter and the fact that the defendants did not lead any evidence to controvert the case of the plaintiff, the trial court decreed the plaintiff's suit under Order VIII Rule 10 of the Code of Civil Procedure. However, the lower appellate court reversed the finding of the trial court on the ground that there is lack of evidence produced by the plaintiff regarding intoxication on the date of execution of the partition deed i.e. 15.12.1987. According to the learned counsel when there is no contrary evidence adduced by the defendants nor any contesting written statement was filed by the defendants, the duty of the court was to decree the suit in view of the provision as contained in Order VIII Rule 10 of the CPC but the lower appellate court without considering this aspect of the matter has reversed the finding of the trial court. According to the learned counsel, therefore, the substantial question of law formulated at the time of admission of Second Appeal be answered in favour of the appellant and the plaintiffs suit be decreed.

On the contrary, the learned counsel Mr. D.K. Tondon appearing on behalf of the respondents submitted that the main claim of the plaintiff is for partition of the suit property to the extent of 1/4th share on the ground that in registered partition deed (Ext. 3) less area has been given to the plaintiff. Since there has already been partition between the parties by Ext. 3, which is registered document, the partition cannot be re-opened on the ground of less area. Moreover, after this registered partition deed the plaintiff himself has sold some of the property which has been taken into consideration by the lower appellate court. According to the learned counsel, merely because the defendants have not filed written statement nor cross-examined any witnesses of the plaintiff, the court cannot decree the plaintiff's suit blindly without considering the legal position. On these grounds, the learned counsel submitted that the substantial question of law formulated at the time of admission of the Second Appeal be answered against the appellant and Second Appeal be dismissed with cost.

The plaintiff filed the suit for declaration that the registered partition deed dated 15.12.1987 is not binding on him because it was obtained fraudulently by intoxicating him. The plaintiff thereafter claimed that the plaintiff be allotted 1/4th share in the suit property. From perusal of the judgment of the lower appellate court, it appears that the lower appellate court after perusal of the evidences of plaintiff's witnesses held that there is lack of evidence to show that on the date of execution and registration of the partition deed (Ext. 3), the plaintiff Paspati Ram was in intoxicated condition. Therefore, this finding of the lower appellate court is a pure finding of fact.

Admittedly Ext. 3 is a registered document. In the case of Prem Singh and Others Vs. Birbal and Others, the Hon'ble Supreme Court has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption. Therefore, in the present case the onus was on the plaintiff to rebut the presumption of genuineness of Ext. 3. Since the onus was on the plaintiff, there is no question of rebutting the evidence by the defendants arises. In view of the above facts, the lower appellate court's finding cannot be interfered with in exercise of jurisdiction u/s 100 of the Code of Civil Procedure.

So far Order VIII Rule 10 of the CPC is concerned, it provides that where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. In view of the provision of Order VIII Rule 10 the court is required to examine the case of the plaintiff and merely because the defendant has not filed any written statement, the court cannot, without examining the plaintiff's case whether it is legally maintainable or not, decree the plaintiff's suit against the defendant. It is settled principles of law that Rule 10 envisages an order, namely pronouncement of judgment, in the presence of the defendant but in absence of his written statement and under this Rule there is no legal compulsion to always pass an order decreeing the suit. Even if the court has to pronounce the judgment on the basis of the plaint in the absence of any written statement of the defendant, the court must see that the requirements of law applicable are fulfilled.

In the case of Modula India Vs. Kamakshya Singh Deo, the Hon'ble Supreme Court has held that though this Rule 10 of Order VIII says that the Court shall pronounce judgment against defendant still it does not make it mandatory for the Court to pass a decree in favour of the plaintiff straightway because the written statement is not filed.

So far the submission of the learned counsel that lesser area has been granted to the plaintiff in Ext. 3 is concerned, it may be stated that it is settled principles of law that it is true that in a case where a partition has taken place and if the share allotted to one of the parties in unconsciously disproportionate it is open to the Court in a given case to re-open partition vide Radhamoni Bhuiyanin and Others Vs. Dibakar Bhuiya and Others . In the present case, it is the pleading of the plaintiff that lesser area has been given and there is no specification either in the pleading or in the evidence that what is that less area and whether it is unconsciously disproportionate. It is settled principles of law that in partition the rule is equal division of the property but it is not always done because of the nature of the land allotted in favour of a particular person. If a fertile land is given in favour of a particular co-sharer and infertile land is given in favour of another person naturally the area will vary. The rule is that the valuation of the property must be same. Here, there is no such explanation as to whether and why any lesser area was given and what was the valuation of the property, which was allotted in others share. Therefore, merely because some less area has been given to the plaintiff, on that ground alone the partition which has already been effected between the parties as far back as in the year 1987 and was acted upon and some of the properties have been sold by the plaintiff himself as has been noted above by the lower appellate court, the same cannot be re-opened and, therefore, the lower appellate court has rightly dismissed the plaintiff's suit. In view of the above findings the substantial question of law formulated at the time of admission is answered against the appellant. Accordingly, this Second Appeal is dismissed. No order as to cost.