Smt. Sabitri Rani Das And 5 ORS v. Dilip Das And 4 ORS
INTHEHIGHCOURTOFTRIPURA AGARTALA R.S.A.No.18of2014 1. Smti.SabitriRaniDas,
2. ShriBiswajitDas,
3. Smt.RatnaDas(Dey),
4. ShriRanjitDas,
5. Smti.MannaRaniDas,
6. ShriAbhijitDas,
Appellants -Versus- 1. ShriDilipDas,
2. Smti.AlpanaDas,
3. Smti.SwapnaDas,
4. Smti.RitaDas,
5. Smti.ShampaDas, ! "#
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JUDGMENT&ORDER
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: 0 755985&9; (ii) Where the plaintiff?appellants instituted the suit for partition and the defendant?respondents set up their pleadings claiming amicable partition, burdenliesonwhomtoprovethefactum ofamicablepartition? (ii) Whether the judgment and decree passed by the trial Court and first appellate Court suffers from any perversity? [3] . 0 : "
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* : [5] $ " " ; Theplaintiffs'sideonlyadducedonedocumentof Khatian.Theydidnotexhibitthepurchaseddeed by which the predecessors' of the plaintiffs and thedefendantsbecamethejointownerofthesuit land. In absence of such a document it is also
verydifficulttoascertainwhoweretherespective parties.RatherIfindthatthedefendants'caseis believable and acceptable. It is well established that under the Hindu Law, there can be an oral partitionandonceapartitionisalleged,thenthe law will presume, unless something is proved to thecontrary,thattherewasacompletepartition betweenthemembersofthefamily. In the instant case I find that defendants have been able to prove their case in respect of the amicable partition made between their predecessors. In the alternative I must say that plaintiffs'sidefailedtoadducesufficientevidence tojustifytheirclaim.Hence,Iholdthatthesuitis not maintainable in its present form and nature as the suit land has already been partitioned betweenthepredecessorsofboththeparties. [6] )
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" ; In the case at hand, the parties have submitted plaint, written statement, adduced oral and documentary evidence, which are sufficient to disposeoftheissueNo.6(a)andotherissues.The parties in the case are on this suit over the partition of joint property purchased by the predecessors in interest, which is the only property they inherited. Ext.G., i.e., Khatian No.2107, only shows that Girindra Kumar Das alongwithLoknathDas,SabitriRaniDas,Biswajit Das, Ratna Das, Ranjit Das, Manna Rani Das, Abhijit Das, Anjali Das, Sikha Das, Tukurani Das wereownersof someproperties.
GirindraKumar Das was the father of Dhirendra Kumar Das and Nripendra Kumar Das, since deceased, the predecessorsininterestofthepresentplaintiffs? appellants and defendants?respondents. Apart from that, nothing has been proved by the defendants?respondents that any portion of the land of Khatian No.2107 was inherited by Nripendra Kumar Das and Dhirendra Kumar Das duringlifetimeorthat,theyhaveleftbehindany such property, which has been inherited by the present plaintiffs?appellants and defendants?
respondents. Therefore, there is no merit in the cross objection preferred by the defendants? respondents.Consequently,itisrejected. )
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" " 0 " Ganeshi(D)throughL.Rs.&Ors.vs.Ashok & Anr. AIR 2011 SC 1340 ( 0 ) Ganeshi(D)throughL.Rs. &Ors.vs.Ashok&Anr, ;
14. A family settlement is not a transfer of property, as rightly held by the first appellate court. The first appellate court held that the familysettlementwasbonafidetoavoiddisputes in the family. The decree in Civil Suit No. 476 of 1978 was only in pursuance of that family settlement, and hence it could not be interfered with. 15. We have carefully perused the judgment of thefirstappellatecourtwhichwasthelastcourt of facts and we are of the opinion that the findingsoffactgivenbyitarebasedonrelevant evidence.HencetheHighCourtwasnotjustified ininterferingwiththosefindings. 16. For the foregoing reasons, the appeal is allowed.
Theimpugnedjudgmentandorderofthe High court is set aside and that of the first appellate court is restored. There shall be no orderastocosts. [12] ) KochukakkadaAboobacker(Dead)byLRs.and others vs. Attah Kasim and others (1996) 7 SCC 389 ?
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? Sawarni(Smt)vs.Inder Kaur (Smt) and others, (1996) 6 SCC 223, ? ; CFurther,thelowerappellateCourthasnotcome to any positive finding that Inder Kaur was the daughter of Gurbax Singh, He has been swayed away by the so called mutation in the revenue record in favour of Inder Kaur. Mutation of a propertyintherevenuerecorddoesnotcreateor extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional DistrictJudgewaswhollyinerrorincomingtoa conclusion that mutation in favour of Inder Kaur conveys title in her favour.
This erroneous conclusionhasvitiatedtheentirejudgment.That apart,asitwouldbeseen,thelearnedtrialJudge had considered the oral evidence adduced on behalf of the parties to establish the respective stand as to who was the second daughter of GurbaxSinghandonperusalofthesamecameto the conclusion that it was Roori who was the seconddaughterofGurbaxSingh.TheAdditional District Judge has not even discussed anything about the said oral evidence and the reasoning's advancedbylearnedtrialJudgeincomingtothe conclusionthatitwasRooriwhowasthesecond daughter of Gurbax Singh.
Non consideration of the oral evidence adduced by the parties, by the lower appellate Court vitiates the ultimate conclusion on the question whether Roori was daughterofGurbaxSinghornot."
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