Sunil Ambwani - (1.) -Heard Shri Sankatha Rai, learned counsel for the appellant and Shri Vishnu Kumar Singh holding brief of Shri R. N. Singh for the respondents.
(2.) THIS second appeal arises out of O.S. No. 342 of 1971 for partition of house No. 8/249 situated in Mohalla Khajuri (Pandeypur) district, Varanasi. The suit was decreed on 6.3.1975 for partition of 1/4th share in the house with costs. The Civil Appeal No. 463 of 1975 against the judgment and decree dated 6.3.1975 filed by Bhagwan Das was dismissed. The appellate court by its judgment dated 22.7.1976 also made defendant No. 3 Mangala and defendant No. 1 Bhudeo Narain Singh entitled for separation of their share on payment of court fees. Defendant No. 3 was found entitled to 1/8 share and defendant No. 1 to 1/2 share in the house. Remaining 1/8 share was directed to go to defendant No. 4 Bhagwan Das. A preliminary decree was directed to be prepared by the trial court and the decree of the trial court was modified to that extent. The second appeal was admitted on November 10, 1976 before the 1976 amendments in C.P.C. came into force, i.e., on 1.2.1977. The preparation of final decree was stayed. Shri Sankatha Rai, learned counsel for Bhagwan Das, the defendant-appellant made entitled to 1/8 share in the house has challenged the judgment on the ground that house No. S-8/248 was separate property of the branch of Madho and that he was entitled to 1/2 share. Bhudeo Narain never claimed that house No. 8/248 exclusively belonged to his branch. The assessment register from 1935 to 1940 clearly indicate that both the houses were jointly recorded in the name of Banarasi, Jagarnath son of Madho, Bechan and Baba sons of Sharda. There is no presumption of correctness of municipal record. The plaintiff herself admitted that the land on which house No. S-8/248 was constructed belonged to Sharda and Madho. Bhudeo Narain also clearly admitted that branch of Sharda and Madho lived jointly 10 or 12 years ago. The sale deed dated 20.11.1967 obtained by Mst. Malia plaintiff from Bechan described Bechan's half share in house No. S-8/249. If Bechan has half share in the house, the share of Kamla necessarily comes to 1/4th. The surrender deed dated 29th June, 1925 by Fakir in favour of Banarasi is an admission by the predecessor-in-interest of Bhudeo Narain. It was nobody's case either in the pleading or in evidence that house No. S-8/248 belonged to Fakir and Fakir surrendered the same to Banarasi. Bhudeo Narain had clearly stated that house No. S-8/248 was constructed by Banarasi. This statement contradicted the recital of the surrender deed dated 29.6.1925 executed by Fakir. The admission of predecessor of plaintiff contained in his application dated 3.6.1963 and 14.3.1963 conclusively proved the theory of partition of two houses. These admissions were illegally ignored. Shri Sankatha Rai contends that defendant-appellant proved his case that the house in dispute fell to the share of the branch of Sharda alone. The plaintiff's share was half while the share of defendant appellant was 1/4. The remaining 1/4 share belonged to Mangala. Bhudeo Narain had no share. Malia, the plaintiff is the sister of late Bechan. The plaintiff and other defendant-respondents being members of the same family colluded to harm the defendant-appellant.
(3.) I have gone through the judgments of the submissions raised by Shri Sankatha Rai. The appellate court considered the main issue as to whether house No. S-8/248 belong to branch of Madho and was not a joint property of the branch of Sharda and Madho, and was not ancestral house. Having considered the admitted pedigree, it was found that the theory of partition could not be believed as the house No. S-8/248 was not an ancestral house, and there was no question of its partition 20 years ago, when Bechan himself wrote in the document '51C' that partition has now taken place. No one had set up the case of a joint family. It was the exclusively property of Bhudeo Narain. The house in suit namely house No. S-8/249 belonged to Bhudeo Narain and the sons of Sharda. Bechan had only 1/4 share. The plaintiff came out with truth and spoke against her own interest that she had purchased only 1/4 share in the house, although the deed mentioned it to be 1/2 share. Baba had only 1/2 share and thus both the sons would get 1/8 share each. Kamala, defendant No. 2 could sell only 1/8th share to Bhagwan Das, defendant No. 4. All the cases cited at the bar relate to the validity of findings beyond the pleadings and that evidence should not be allowed without or beyond pleadings. The admissions in documents and in oral depositions are however best evidence if substantiated by relevant and admissible evidence. In the present case, the appellate court did not commit any error in relying upon such admissions. There is as such no need to discuss the entire case law cited by the counsel for the appellant.;