Decided on August 20,1973

NIRA DEI Appellant


- (1.) THIS appeal is by the plaintiff and is directed against the confirming decision of the lower Appellate Court.
(2.) THE plaintiff brought the suit for partition of the suit properties mentioned in Sch. 'Kha' in the plaint by metes and bounds. Plaintiff and defendants 1 to 7 are members of one family as would be seen from the following genealogy :It is the admitted case of the parties that this Jaganath Mahanta had two wives. By his first wife he had two sons Gangadhar and Lachman, who had admittedly no interest in the suit properties. THErefore, the suit is to be disposed of having regard to the aforesaid genealogy only and ignoring two sons of Jaganath by his first wife altogether from consideration. Lakshan was the original defendant No. 5 in the suit and he having died during the pendency of the suit, his widow Champa has been substituted in his place. THE suit properties are situated in five villages. Items 1 and 2 constitute a tank in village Chatraipur and item No. 3 is the homestead land with house standing thereon in village Chachhinapada. Item Nos. 4, 5 and 6 are agricultural lands situated in village Bahananda, Pandugadia and Karanjakoili. Plaintiff's story is that Haguru Mahanta died in 1958 leaving behind his widow and three daughters, plaintiff and pro forma defendants 6 and 7. His widow died in 1961. THE suit properties are the ancestral undivided properties of Haguru and his two brothers. Upon the death of Haguru the plaintiff is entitled to carve out her 1/9th share in the suit properties by partition by metes and bounds. It is alleged that the defendants 1 to 4 got their names fraudulently mutated in respect of the suit properties situated in village Chhotraipur. Bahanada and Karanja Koili in the year 1960-61 and further that defendants 1 to 4 sold away the lands mentioned in Schedule Gha of the plaint to defendant No. 8 and the lands mentioned in Schedule Gha to defendants 9 and 10 as if these properties belonged to them exclusively. This gave rise to the cause of action for the suit. The defence case is that there was a completed prior partition and accordingly, the present suit is not maintainable. This partition took place about 30 to 35 years ago, Defendant No. 6 supported the case of defendants 1 to 5 and pro forma defendant No. 7 supported the case of plaintiff. Both the courts have concurrently found that the defence case of prior partition is true, and have dismissed the suit. It is admitted by the plaintiff that there was a partial partition amongst the three brothers in which all properties were partitioned by metes and bounds except 'Kha' schedule properties which were kept joint. That prior partial partition took place long before the Revisional Settlement of 1943. The plaintiff claims partition of these suit properties as they were kept joint in the prior partition. It is the well settled position in law that where there has been once a partition, even a partial partition, either proved or admitted, the presumption arises that it was a complete partition both as to parties and as to property and there is no presumption in such a case that any property was excluded from partition. A person who alleges that family property, in the exclusive possession of one of the members after the partition, is joint and is liable to be 's Hindu Law, Art.328). partitioned, has to prove his case (vide 13th Edition, Mulla Both the courts have dealt with all the pieces of material evidence on record, both oral and documentary, and the concurrent conclusion ii that there has been a completed partition of all properties of toe family including the suit properties Mr. Sinha strenuously attempted to show that inferences drawn from certain pieces of evidence are erroneous. Whatever other possible inferences their may be other than those drawn concurrently by the two courts below, that does not raise a question of law but is essentially a question of fact. Further, the whole matter appears to be clinched by the admissions of Haguru, the father of the plaintiff, contained in Ex. Z/1, a petition filed by him jointly with his brothers before the Settlement Officer, wherein he stated that the lands allotted to him in villages Bahanada, Pandugadia and Mouda be demarcated by Amin. It will be seen that the plaintiff has claimed partition with regard to those very lands afresh though her father has admitted in Ex. Z/1 that these lands had already been partitioned and are, therefore, no longer partible. Similarly, in another document, Ex. 7, dated 1-3-1943, which is a joint petition filed by Haguru, Lakshan CD.5) and Lalmohan, father of defendants 2 to 4 before the Settlement Officer, they including Haguru, have admitted that all the three brothers bad partitioned their properties about 15 years after the settlement of 1927 and that they were in separate possession of their respective shares and prayed that their respective shares may be demarcated and separately recorded. These admissions, coupled with the presumption that the joint family properties have been partitioned including the Schedule 'Kha' clearly outweighed all possible inferences against partition derivable from any piece of evidence on record, specially when there is clear oral evidence in support of the completed partition of the joint family properties. In that view it is not possible to interfere with the concurrent findings of fact. In the result, therefore, there is no merit in this appeal which is dismissed with costs. Appeal dismissed.;

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