FIRST APPEAL No.

507 OF 1978

Agasint the judgment and order decree dated 10.5.1978, passed by Sri Budhadeo
Narayan Sinha, III Additional Subordinate Judge, Sasaram in Title Suit No. 115
of 1995 of 1975/77.

1. ACHHAIBAR KUMAR, SON OF KASHI SAH

2. BIJOY PD. SHAH, SON OF KASHI SHAH
RESIDENT OF VILLAGE MAHROR AND TENUAJ, P.S. DINARA, DISTRICT- ROHTAS

Versus

1. RAM CHANDER SHAH, SON OF LATE MATHURA SHAH

2. OM PRAKASH, SON OF RAM CHANDER PD.
3. MUNNA
4. SUBASH
5. MANIK CHAND
6. RAJESH
7. GOPAL
8. BACHA
NOS. 3 TO 8 ARE MINOR SONS OF RAM CHANDER PD. OF VILLAGE MAHROR AND
TENUAJ, P.S. DINARA, DISTRICT- ROHTAS UNDER THE GUARDIANSHIP OF SHRI RAM
CHANDER PD. FATHER.
9. UJJAIN PD. SHAH, MINOR SON OF KASHI SHAH
10.ARCHANA KUMARI WIFE OF LATE ANUJ PD. SHAH
11.ANKUR KUMAR, MINOR SON OF LATE ANUJ PD. SHAH
12.DINESH PD. SHAH, MINOR SON OF KASHI SHAH
NOS. 9 TO 12 ALL RESIDENT OF VILLAGE- MAHROR AND TENUAJ, P.S. DINARA,
DISTRICT- ROHTAS

With

FA No.79 OF 1987
Against the judgment and decree dated 6.12.1986, passed by Sri S.B. Singh, 3rd
Additional Sub-Judge, Sasaram in T.S. No. 115 of 1995 of 1975-77

1. ACHHAIBAR KUMAR, SON OF LATE KASHI SHAH

2. BIJOY PD. SHAH @ RADHA KRISHNA PD. ADOPTED SON OF LATE BANARSI SHAH
RESIDENT OF VILLAGE- MAHROR AND TENUAJ, P.S.- DINARA, DISTRICT- ROHTAS

Versus

1. RAMCHANDRA SAH, SON OF LATE MATHURA SAH

2. OM PRAKASH, SON OF RAM CHANDRA SAH
3. MUNA SAH
4. SUBASH
5. MANIK CHAND SAH
6. RAJESH
7. GOPAL
8. BACHA
NOS. 6 TO 8 ARE MINORS UNDER THE GUARDIANSHIP OF THEIR FATHER RAM CHANDER
SAH
ALL SONS OF RAM CHANDRA PD. OF VILLAGE- MAHROR, P.S. NATWAR, DISTRICT-
ROHTAS.
9. UJJAIN PD. SAH, MINOR SON OF KASHI SHAH
10.ARCHANA KUMARI, WIFE OF LATE ANUJ PD. SHAH
11.ANKUR KUMAR, SON OF LATE ANUJ PD. SHAH
12.DINESH PD. SHAH, SON OF LATE KASHI SHAH
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RESPONDENTS 9 AND 12 ARE MINORS AND UNDER THE GUARDIANSHIP OF RAM AWDESH
UPADHYAY, ADVOCATE, SASARAM.
ALL ARE RESIDENTS OF VILLAGE- NATWAR, P.S.- NATWAR, DISTRICT- ROHTAS.

For the Appellant :- Mr. Sheo Nandan Rai, Senior Advocate

Mr. Kumar Uday Singh, Advocate

For Respondent nos. 9 to 12 :- Mr. Chitranjan Sinha, Senior Advocate

Mr. Vijay Shankar Shrivastava, Advocate

For Respondents :- Mr. Raghib Ahshan, Senior Advocate

Mr. Rang Nath Choubey, Advocate
Mr. Deepak Kumar Singh, Advocate

P R E S E N T

THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN

S.A. Khan, J. These appeals are by the defendants. The First

Appeal 507 of 1978 has been filed against the preliminary

decree by which the plaintiffs’ suit for partial

partition has been decreed. The First Appeal 79 of 1987

has been filed against the final decree allocating the

shares in accordance with the decree awarded in the First

Appeal No. 507 of 1978.

2. The plaintiffs filed a suit for partition of

Schedule A and B properties described in the plaint by

meets and bounds and for a decree of rendition of

accounts for past years and pendentlite against the

defendants.

3. The case of the plaintiffs in brief is that

one Budhram Sah had four sons namely Sheo Shankar Sah,
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Gobardhan Sao, Mathura Sao and Banarsi Sah. Mathura Sah

had two sons, Ram Chandar Sah, the plaintiff no. 1 and

Kashi Sah, the defendant no. 1 who are respectively

Kartas of the two joint families. Mathura Sah died in

the year 1961 in jointness with the plaintiffs and

defendants. After his death Kashi Sah, defendant no. 1

became the Karta of the family.

4. The genealogical table is given below:-

5. There was already a partition in the family

of Budhram Sah. Some of the lands of village Mahror were

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formally partitioned, while cultivation of others lands

were done separately for the sake of convenience without

there being any formal partition. The plaintiffs

specific pleading is that since there are a large number

of persons interested in that property, there would be

complication in making them parties to the present suit,

therefore, the partition is restricted properties of

village- Tenuaj which are jointly possessed by the

branches of Mathura Sah.

6. It is alleged that at the time of revisional

survey, Kashi Sah, defendant no. 1 the elder brother, in

his capacity as Karta of the family attended the survey

and got Khata No. 10 having an area of 36 decimals

recorded in the joint name of the plaintiff no. 1 Ram

Chandar Sah and defendant no. 1 Kashi Sah, whereas Khata

No. 11 having an area of 1.03 acres has been recorded

only in the name of defendant no. 1, Kashi Sah.

7. Khata No. 147, Plot No. 662 having an area

of 26 decimals is the joint family property of the

plaintiffs and defendants, Khata No. 98, Plot No. 878

having an area of 1.22 acres is in possession of the

plaintiffs and defendants for the last 20 years. It is

stated that they have acquired title over it by virtue of

adverse possession. Others plot consists of mills and

houses. Therefore, it appears that the dispute relates

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to 4 plots of land. It is further stated that schedule A

property are joint family properties of both the parties,

there are shops, rice mill, ‘chhattal’ and the houses

over it. The defendants are not dividing the rent with

respect to the mill, shops and houses.

8. Schedule B properties are the properties on

which the mill is situated and is in joint possession of

both the parties and the plaintiffs claim half share to

the said schedule B properties. Defendant no. 1 refused

to share the profits and usufructs of the lands of

schedule A and B and as such the necessity of filing this

suit. It would be relevant to mention that specific

lands in schedule A and the revisional entry of the suit

lands. Defendants’ case is that there is no unity of

title and possession, the suit is not maintainable.

9. According to the defendants, Mathura Sah

died in 1961 and after his death, plaintiff no. 1 became

the Karta of the family. They further claim that the

properties in the family of Budhram Sah have already been

partitioned in the life time of Mathura Sah. The

properties allotted to Mathura Sah in village- Mahror

have been described at schedule ‘Ka’ and the lands which

were allotted to the defendants have been described at

schedule ‘Kha’. The other branches of Budhram Sah have

no connection with the schedule A lands of the written

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statement. The main objection of the defendants is that

the present partition suit is only with respect to a part

of the land and as such it is fit to be dismissed. The

defendants deny the case of the plaintiffs that the

defendant no. 1 had got his name recorded in collusion

with the survey staff illegally in Khata No. 98, 10 and

147 in village- Tenuaj property in fact the plaintiffs

have filed this suit taking advantage of the illegal

entries made in connection with Tenuaj land. It is

further stated that the land of Khata No. 11 was

purchased by defendant no. 1 from a private fund which he

received from the house of his in laws and accordingly it

was recorded in the name of defendant no. 1 only. The

consideration money with respect to the said Khata No. 11

was paid by defendant no. 1 and it is in the exclusive

possession of the defendant no. 1. The plaintiffs’ case

that they were claiming joint possession of the mill

properties of Khata No. 147 and 98 has been denied. The

claim is that the house and shops over plot no. 160

belongs exclusively to the defendants and plot no. 879

and 878 were allotted to them in partition. Whereas with

respect to plot no. 662, it is said that it belongs to

the defendants exclusively and, therefore, there is no

question of any decree with respect to rendition of

accounts of partition.
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10. The defendants have claimed that a

panchayati was held with respect to the claim of the

plaintiffs in which the Punches gave their award on

10.1.1975 after taking evidence of the parties. The

award has been registered and, therefore, this present

suit is also hit by the provisions of the Arbitration

Acts and the plaintiffs are not entitled for any reliefs.

11. The Trial Court has framed 9 issues but the

relevant ones are (a) whether the suit is hit by Section

32 of the Arbitation Act (b) whether there has been a

partition by the division of the properties between the

parties to the suit or not? (c) whether the plot no. 879

under Khata No. 11 measuring 1.03 decimals in village-

Tenuaj is self acquired acquisition of Kashi Sah

(defendant no. 1) or not? (d) whether the suit is hit by

partial partition or not?

12. The Trial Court has come to a finding that

(1) As neither party has filed the award in question or

the agreement in question and admittedly it has not been

made the rule of law, as such the award cannot have any

legal force. (2) The story of partition and division as

alleged by the defendants has been disbelieved by the

Court. (3) The non inclusion of Khata No. 159 and 90

which are in the joint Khatas of the 4 brothers of

Mathura Sah as per the Khatiyan, Ext. 4 is not an

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impediment to the plaintiffs in filing the suit for

partial partition as also the non inclusion of lands of

village- Mahror will also not act as an impediment in

filing the present suit for partial partition. It has

also been held in this context that there is no absolute

rule or law prohibiting the suit for partition of some of

the properties, hence there is no legal bar in partition

of only Tenuaj properties.

13. I intend to dispose of this suit on a

limited question as to whether partial partition was

admissible in the facts of this case and what reliefs can

be given to the parties in the present appeal.

14. Before dealing with this issue however, it

would be proper to comment on the findings of the Trial

Court with respect to the other issues. The finding of

the Trial Court that the award would not be binding on

the parties cannot be challenged by either party as none

of them cared to file the award in Court and as such no

interference is warranted by this Court.

15. The Trial Court has held that the

defendants’ case that there was prior partition of the

land of Mahror and Tenuaj has not really been proved in a

proper way by the defendants. No explanation has been

given as to why the plots of Khata No. 159 and 90 are

still joint khatas of 4 brothers of Mathura Sah as per

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the Khatiyan, Ext. 4 series. The Court has come to a

finding that the defendants’ case that there was prior

partition by division of the properties between the

parties to the suit has not been proved by the defendants

appears to be some what in conflict with the rest of the

judgment. It seems to me that both the plaintiffs and

the defendants have claimed that there was a partition

amongst the sons of Budhram Sah and the defendants and

further claim that there was also partition between the

sons of Mathura Sah i.e. the defendant and the plaintiff.

However, the evidence that they have led appears to be

insufficient and becomes somewhat irrelevant to the issue

as the defendants themselves claim that there are certain

properties which have been left unpartitioned as per the

revisional survey due to good reasons. On the other hand

the finding of the Court that Khata No. 159 and 90 are

still in the joint Khata of 4 brothers of Mathura Sah as

per Ext. 4 would also lead this Court to conclude that in

fact this finding would become irrelevant in view of the

fact that other brothers are not parties in this suit

moreover, by stating that the lands aforesaid are jointly

held by the 4 brothers of Mathur Sah, the Court has gone

beyond the scope of the suit and this finding ought to be

ignored until defendants prove them to be correct or

incorrect.
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16. This Court will now consider the main issue

i.e. whether the suit would fail on the ground that it

does not include several lands which are even according

to the plaintiffs jointly held by other members of the

family. Before dealing with this issue, it would be

proper to bring on record two facts filed through

Interlocutory Applications by the plaintiffs and the

defendants.

17. Interlocutory Application No. 4271 of 2000

had been filed for admitting certain documents as

additional evidence in this appeal. The documents so

produced are the certified copy of the plaint and the

certified copy of the entire order sheet of Title Suit

No. 120 of 1989. Tile Suit No. 120 of 1989 has been

filed by respondents 9, 10, 11 and 12 after the disposal

of the present suit 115 of 1995 of 1975/77. The suit has

been filed for partition of total land of village Tenuaj

which have not been included in the present partition

suit. It has also been specifically stated that the

lands and properties situated at Mauza Mahror belonging

to the plaintiffs and the defendants have not been

included in the partition suit as Chakbandi operations

are going on in the said lands, however, it has been

mentioned that Title Suit No. 120 of 1989 that the

plaintiffs of the suit reserve their right to file a

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partition suit with respect to the lands of Mauza Mahror

after the Chakbandi proceedings are concluded.

18. Now this Court would consider the pleadings

of the plaintiffs given in the suit with respect to non

inclusion of the entire lands of village- Tenuaj. At

paragraph 6 of the plaint, it has been stated that the

family of Budhram Sah have partitioned the land several

years back. Some of the lands of Mauza Mahror were not

partitioned and they are in possession of different

members of the family in accordance with their

convenience. It is said that many persons are interested

in those lands therefore, they are not filing the

partition suit with respect to other lands of the joint

family properties rather restricting the suit to the

lands mentioned in the schedule. It would be relevant to

point out that Khata No. 147 the lands appertaining to

Khata No. 147 Plot No. 662 measuring 26 decimals having

houses and shops over it are recorded in the R.S.

Khatiyan in the name of Ramdhar Sah, Kashi Sah, Ram

Chandar Sah and Gobardhan Sah showing possession of Kashi

Sah and Ram Chandar Sah whereas lands appertaining to

Khata No. 98 plot no. 878 measuring 1.22 having mill and

two houses on it show that they are recorded in the name

of Vaidyanath Sah showing ‘Avaidh’ possession of Ram

Chandar Sah and Kashi Sah. It is very relevant to state

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that Khatihan entry Ext. 4 has not been taken into

consideration at all and the plaintiffs ought to have

made Gobardhan Sah and Vaidyanath Sah parties in the

suit. Therefore, I find that the case of the plaintiff

fails on account of non joinder of necessary parties.

19. Regarding the question of partial

partition, it is an undisputed fact that a suit for

partial partition can be filed in certain circumstances.

Those circumstances have to be explained and proved. In

the present case the only explanation given is that there

would be a number of parties interested and, therefore,

the suit is not being filed for complete partition of the

property. In any event the suit ought to have been filed

with respect to the entire properties of village Tenuaj

and other properties except for properties of village-

Mahror where it is alleged that conciliation proceedings

are going on since 1975. Learned counsel for the

respondents has relied on certain judgments to show that

partial partition is permissible. This Court does not

doubt the proposition of law. However, in the facts of

this case, the case of the plaintiff is being rejected as

the plaintiff has failed to include all the joint family

properties and also fails on the ground of non-joinder of

necessary parties in the plaint.

20. Learned counsel has referred to (1966) 2

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SCR 612 in the case of Commissioner of Income Tax, Assam

Vs. Nandlal Aggarwal and Anr. This case relates to the

guardian’s liability to pay income tax on behalf of the

minors. This case is not at all relevant for the purpose

of deciding the issues in this case. Another case

referred to is AIR 1970 Mysore 168 P.Cheradappa Pai Vs.

Agricultural Income Tax Officer, Puttur. In this case

there was a partition deed on the basis of which the

Court held that the family properties belong to the 4

brothers as tenants in common and therefore, held that

the brothers should have been assessed as tenants in

common. This case too is not relevant for deciding the

issues in this present case. The next case referred to

in the case of Kashinathsa Yamosa Kabadi & Ors. Vs.

Narsingsa Bhaskarsa Kabadi & Ors. reported in AIR 1961 SC

1077. The family decided to refer the matter to the

Panches. The reference is part of the record. The Court

held that reference to Panches would show the joint

family status. The Court also held that it would be open

to the members of the family to divide part of property.

The facts of the aforesaid case are very different to the

present one. The Court held that the decision of the

arbitrator would be final with respect to the award made

by the arbitrator. In the present case, there is no

written instrument by which the properties were divided

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rather the suit has been filed for partition of some of

the properties belonging to village Tenuaj leaving out

several properties of the joint Hindu family. Therefore,

this case is not relevant in the facts of the present

case. In the Nagpur case, Jagmohan Lakhmichand & Ors.

Vs. Ranchoddas & Ors. reported in AIR 1946 Nagpur 84,

several issues were involved. The Court has held that it

is open to members of a joint Hindu family to make a

division and severe their interest in respect of part of

the property, while maintaining the status as a joint

family and holding the rest as the properties of a joint

undivided family. In this case partial partition of the

property took place, the suit was with respect to the

properties which had not been partitioned. The issues

and facts in the present case do not tally with the

aforesaid case.

21. In the present facts, the pleadings of the

parties and the material that has come on record, I find

that the suit filed for partial partition would not be

maintainable in view of the fact that there are no

special circumstances as to why there was a necessity to

file suit for partial partition of the family properties.

Undoubtedly the plaintiffs are entitled to ask for

partition of the joint family properties however, the

judgment of the Trial Court has not taken into account

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the entire materials and has awarded the decree. In the

circumstances, since this Court has allowed the I.A. No.

4271 of 2000 wherein it has been stated that there is

already a partition suit 120 of 1989 pending with respect

to the other properties belonging to the joint family and

I.A. No. 6676 of 2008 filed on behalf of the respondent

nos. 1,2,3,7 and 8 stating therein that Title Suit No.

337 of 1999 is pending in the Court of Sub-Judge III,

Sasaram with respect to lands situated at Mahror, this

Court directs that the records of the present case may be

sent to the Court of the Sub-Judge, I, Sasaram where

Title Suit No. 120 of 1989 is pending. I may observe

that I have not expressed my view with respect to the

merits of the case of either parties. The Trial Court

while deciding the suit will also take into account all

the facts. The Trial Court will expedite the hearing of

the suit and not grant unnecessary time to either party.

Much emphasis have been placed on the fact that a

Consolidation Proceeding is pending with respect to land

situated in village- Mahror and as such the partition

suit would not be maintainable with respect to the joint

family properties. The notification with respect to the

Consolidation Proceeding dated 30.5.2001 with respect to

police station Dinara has been annexed in I.A. No. 6676

of 2008. 8 Years have passed since the notification has

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been issued thereafter it appears that letter no. 12

dated 12.10.2002 was issued for staring the proceedings.

The next letter which has been brought on record is dated

16.6.2004 which indicates that the staffs were not

available for starting the conciliation proceeding and a

request was made to return the staffs who were earlier

doing the type of work so as to commence the proceedings.

What surprises me most is the fact that Title Suit No.

337 of 1999 is allegedly pending in the Court of Sub

Judge III, Sasaram however, till today no steps have been

taken to conclude the suit although the Consolidation

Proceeding perhaps commenced in 2001. The appellants

have not filed affidavit denying or accepting the fact

that Title Suit No. 337 of 1999 was filed by appellants 3

and 5 before the Sub-Judge, 3rd, Sasaram. All these

facts perhaps have to be ascertained by the Court in

session of the matter. I also direct that in case the

Court of Sub-Judge, 1st is vacant then the District &

Sessions Judge, Sasaram and Rohtas may take steps to

transfer the suits in question to any Sub-Judge whom he

thinks fit and proper.

22. These appeals are disposed of and are

remanded to the Court of the Sub-Judge, 1st, Sasaram at

Rohtas to dispose of the Partition Suit No. 120 of 1989

along with Partition Suit No. 115 of 1995 of 1975/77.

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The judgment passed in the Title Suit No. 115 of 1995 is

set aside. The appeal is remanded for the reasons

discussed aforesaid.

The suit should be disposed of expeditiously

and the parties should not be permitted to take time for

frivolous reasons.

Patna High Court, (Sheema Ali Khan, J.)

May 20th 2009,
N.A.F.R./Sanjay