VIKRAMADITYA PRASAD,J. - (1.) Defendants are the appellants.
(2.) THE substantial question of law to be answered in this appeal is : "Whether the learned Court of appeal below erred in reversing the finding of the trial Court to the effect that the plaintiff would be entitled to 1/3rd share in the property in suit only on the basis of the evidence of P.W. 3 to the extent that the plaintiff had paid a sum of Rs. 500/ - and rest Rs. 500/ - was paid by the defendants, although there was no such recital in Ext. 1 itself." The aforesaid question arose out of the following short facts : Certain peace of lands were transferred by a deed of sale vide Ext. 1 by the vendor to the following persons (1) Jagdish Mahto, son of late Neman Mahto, (2) Mathura Mahto and (3) Basudeo Mahto, both sons of Namchand Mahto. The consideration amount for the sale of the land was Rs. 1000/ -. Both the parties remained in joint possession of the land and, thereafter, on 3.3.1996 the defendants, namely, Mathura Mahto and Basudeo Mahto gave out that this year they would take 2/3rd of the produce from Schedule -A land, 1/3rd would be of the plaintiff on the ground that in the sale deed the names of the plaintiff and defendants are entered and therefore the defendants are laying claim that on the basis of their names they have got 2/3rd share. It was also claimed by the plaintiff that as per the demand of vendor the factum of passing the consideration amount to the extent of half by the plaintiff and having half share in the land and remaining half was contributed by the defendant and, thus, the plaintiff claimed that in the said land the plaintiff had got half share and the defendants together half share on that consideration the sale deed was executed. It was also pleaded that the defendants were cultivating the lands only to the extent of half share without any partition by metes and bounds and the produce is also appropriated accordingly. Thus, the claim is consideration for the purchase of the land was passed to the vendor and in that 50% i.e. Rs. 500/ - was paid by Jagdish Mahto and remaining Rs. 500/ - was paid by Mathura Mahto and Basudeo Mahto jointly and thus Jagdish Mahto had 50% share in the said land and Mathura Mahto and Basudeo Mahto have got 50% share in the said land and they are also in cultivating possession of that land according 'to their share. But because of the aforesaid claim of Mathura Mahto and Basudeo Mahto, the aforesaid it was filed.
(3.) IT appears that in the trial Court no issue was framed to decide exactly on this matter but an issue was whether the plaintiff is entitled to get a decree for partition of Schedule -A land and this discussion on this issue has been mentioned in paragraph 7 of the Judgment. The learned trial Court found that in support of the payment of half and half consideration, thus, Rs. 500/ - the plaintiff examined Babuni Mahaton and Nando Mahaton as P.W 2 and P.W 3 who were vendors and they had stated before the Court in their evidence that they had sold half land to the plaintiff and half land to the defendants through one sale deed and the defendants have given them Rs. 500/ - towards the consideration amount and thus, this witness also proved before the court below that both the parties were in cultivating possession and jointly used to distribute the crops but the witnesses did not say as to what ratio of the crops were used to be distributed. The learned trial Court considered that this admission of payment of half of the consideration by defendants is not mentioned in writing. D.W 5 had been examined on behalf of the defendants and he has stated in his evidence that the consideration amount has been given by the purchasers jointly to the vendors as per contributing 1/3rd each and after obtaining the sale deed three purchasers occupied about 1 Acre each and the land was never cultivated jointly and he denied that half of the consideration amount was paid by the plaintiff. On consideration of .the evidence and considering the backdrop of sections 91 and 92 of the Indian Evidence Act and also considering the recital the trial Court came to a finding that the plaintiff was not entitled to half share as claimed because' his interest in the suit land cannot be more than 1/3rd share. Thus, the learned trial Court found that the consideration amount was not paid half and half by the plaintiff and the defendants, rather it was paid in the ratio of 1/3rd each. Being aggrieved by the judgment and decree of trial court the first appeal was filed and the learned 1st Appellate Court vide paragraph 16 of the Judgment held that P.Ws. 2 and 3, the vendors have come before the Court to give their version, who stated that the plaintiff paid half of the consideration amount. There is nothing to disbelieve the version of the vendors to depose on the point under consideration. Thus even according to the vendors, the share purchased by the plaintiff was to the extent of half and not 1/3rd, as alleged by the defendants. The learned Appellate Court vide paragraph 17 also examined that the land of Dar -raiyati khata, the share of the plaintiff, as referred to above, was half. There was no question of purchasing 1/3rd share by the plaintiff in the lands in which he had already got half share and this fact also lends support to the case of the plaintiff and in this view of the matter the finding of the learned trial court was reversed.;