1980 (2) TMI 278 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the story of partition as set up by defendants 1st party is correct.
2. Whether the properties in Schedules 1 to 4 are joint family properties or have been partitioned.
3. Whether the plaintiffs are entitled to a decree for partition and mesne profits.

Detailed Analysis:

Issue 1: Whether the story of partition as set up by defendants 1st party is correct.
The defendants 1st party contended that the four branches of Debi Charan Pandey had separated before the cadastral survey and settlement operation, finalized in 1912. This separation included the partition of all joint family properties except for Khata No. 19, which was partitioned later. The trial court, after examining the evidence, including various sale deeds (Ext. C-1 series) and rehan deeds (Ext. B-1 series), found that the story of partition by defendants 1st party was credible. The court noted that the sale deeds executed by Mahesh Pandey and others indicated separate dealings with the properties, which supported the defendants' claim of partition. The trial court also considered the rent receipts (Ext. D-1 series) and other documents showing separate acquisition and possession of properties by different branches, further corroborating the partition story. The court concluded that the defendants' story of partition was correct and rejected the plaintiffs' claim of separation in 1961.

Issue 2: Whether the properties in Schedules 1 to 4 are joint family properties or have been partitioned.
- Schedule 1 Properties: Initially ancestral, but after the partition alleged by the defendants, some co-sharers disposed of their shares in the Bengal properties. Hence, the question of re-partition does not arise.
- Schedule 2 Properties: Consist of lands given in rehan in the names of different parties, acquired after the partition alleged by the defendants. These properties were acquired separately and are not liable to be partitioned.
- Schedule 3 Properties: Subject to a proceeding under Section 145 Cr. P. C., where defendants 1st party were declared in possession. The court found that defendants 1st party had been in exclusive possession and enjoyment of these properties for more than 12 years, thereby acquiring exclusive title. The plaintiffs failed to prove joint possession or any dispossession.
- Schedule 4 Properties: Acquired by rehan deeds in the name of defendant No. 8 in 1961, long after the partition. The court found no evidence that these properties were acquired from joint family funds, and they are not liable to be partitioned.

Issue 3: Whether the plaintiffs are entitled to a decree for partition and mesne profits.
Given the findings on the partition and the nature of the properties in Schedules 1 to 4, the court concluded that the plaintiffs are not entitled to a decree for partition. Additionally, since the properties of Schedules 3 and 4 were not joint family properties and were in the exclusive possession of defendants 1st party, the plaintiffs are also not entitled to any decree for mesne profits.

Conclusion:
The appeal is allowed, the judgment and decree of the trial court are set aside, and the plaintiffs' suit is dismissed. Each party shall bear their own costs throughout.