Patna High CourtHenry Tirkey vs Basu Orain And Ors. on 4 May, 1999Equivalent citations: 1999(3)BLJR2161Author:D.N. PrasadBench:D.N. PrasadJUDGMENT
 

 D.N. Prasad, J.1. This appeal has been filed on behalf of the plaintiff/appellant, namely, Henry Tirkey against the judgment and decree, passed by Addl. Subordinate Judge, Ranchi by which the learned Sub-Judge dismissed the suit.2. The short facts, as alleged by the plaintiff/appellant is that the plaintiff and defendant No. 3 are the sons of Bhushan Tirkey, who died in or about the year 1963-64 leaving behind the plaintiff and defendant No. 3 as the only sons who inherited the land belonging to their father Bhushan Tirkey. It is further claimed that there was a family partition of tall, the lands and properties belonging to Bhushan Tirkey in the month of January 1964 and the whole land plot No. 793, area 1.65 acres, being land of Schedule-A fell in the exclusive share of the plaintiff and since the time of partition the plaintiff is coming in exclusive possession of the suit land. The defendant No. 3 has got no title and possession over the said land. It is further claimed that defendant Nos. 1 to 3 by practising fraud, obtained a permission from the Deputy Collector, Ranch in respect of the land of Schedule-A for sale in favour of defendant Nos. 1 and 2. The defendant No. 3 was addicted to drinking wine and, as such, the defendant Nos. 1 and 2 after playing fraud, got the sale-deed executed by defendant No. 3 in respect of the land being an area of 82.1/2 decimal of plot No. 793, though defendant No. 3 has got no title and possession over the same and the sale-deed has not been acted upon and due to which the suit has been filed.3. The defendant Nos. 1 and 2 filed the W.S., claiming therein that the suit is not maintainable and it is barred by the provision ofSpecific Relief Act. It is further claimed that actually there was a partition between the plaintiff and defendant No. 3. Both the brothers after the death of Bhushan Tirkey with respect to all the lands, including the suit land and both the parties came in possession over half and half over all the lands including the suit plot No. 793 and defendant No. 3 came in possession over the half of the said land, being an area of 82.1 /2 decimals out of total area 1.65 acres. It is further claimed that the defendant No. 3 after obtaining the sanction of the Deputy Commissioner, Ranch under Section 46 C.N.T. Act sold the said area, being 82-1/2 decimals by a registered sale-deed after payment of consideration amount of Rs. 10,000/- and since the sale, defendant Nos, 1 and 2 are coming in peaceful possession over the said land. The defendant No. 3 had exclusive title and possession over the suit land and the sale-deed was executed by defendant No. 3 with full knowledge and even after permission, as required under Section 46 of the C.N.T. Act and so the question of fraud does not arise and, as such, the plaintiff has got no cause of action for the suit and the suit is fit to be dismissed. The defendant No. 3 did not appear in the lower Court. The learned lower Court framed the issues on the basis of the pleadings of both sides which are as follows:(i) Is the suit as framed maintainable?(ii) Has the plaintiff got valid cause of action or right to sue?(iii) Is the suit barred by law of limitation and adverse possession and ouster?(iv) Is the suit barred by principles of estoppel waiver and acquiescence?(v) Is the plaintiff entitled to get a decree for declaration that he has got right, title and interest over the suit land, as mentioned in Schedule-A of the plaint and the sale-deed in favour of defendant Nos. 1 and 2 by defendant No, 3 with respect to the suit land is not binding upon him?(vi) To what other relief or reliefs, if any, is the plaintiff entitled?.4. Both sides adduced evidence in the lower Court and after considering the evidence on record, oral and documentary, the learned Court below dismissed the suit by the impugned judgment,5. At the very outset, we learned Counsel for the appellant submitted that there is no denial that the plaintiff Henry Tirkey and defendant No. 3, Albert Tirkey are the own brothers and they are sons of Bhushan Tirkey. It is also submitted that the plaintiff admitted about the partition of the lands belonging to their father Bhushan Tirkey in the month of January, 1964. It is further submitted that the learned Court below failed to consider the statement of witnesses produced on behalf of the plaintiff/appellant and there is no indication as to what is the total area of plot No. 793 and if actually the total area is 1.65 acres, then 82.1/2 decimals would be half of the said area. It is also submitted that the said plot No. 793 fell in the share of the plaintiff/appellant, but at the same time, he fairly conceded in course of argument that there is no document showing the total area of plot No. 793, as well as there is no document to show that actually the said plot number fell in the share of the plaintiff. On the other hand, the learned Counsel for the respondent submitted that the partition is admitted between the parties which took place as back as in the year 1964 which is after the death of their father, Bhushan Tirkey and the question of the fraud does not arise on the part of the respondent as the said land was sold by Albert Tirkey, the own brother of the plaintiff after the permission is accorded by the Deputy Commissioner, Ranchi, as required under Section 46 of the C.N.T. Act for which a proceeding was also initiated. It is further submitted that the total area of plot No. 973 is admittedly 1.65 acres out of which half of the land being 82.1/2 decimals have been sold by defendant No. 3, Albert Tirkey and so he has rightly sold the land after payment of the consideration amount and also after obtaining the sanction and so the whole case of the plaintiff becomes falsified.6. Before appreciating the contention of both the parties, I would like to point out the admitted case. It is an admitted position that the plaintiff and defendant No. 3 are the sons of the late Bhushan Tirkey. It is also an admitted position that there was a family partition of all the lands and properties of the late Bhushan Tirkey in the month of January 1964 and the whole lands have been put in partition, but it is claimed by the plaintiff that the whole lands of plot No. 793 fell in the share of the plaintiff exclusively. At this stage, I may mention that there is no document to this effect to corroborate the pleading. It is also an admitted fact that defendant No. 3 had obtained sanction by the Deputy Commissioner, Ranchi, to sell the lands, an area of 82-1/2 decimals in favour of defendant Nos. 1 and 2 for which sanction was also accorded and, accordingly, the sale-deed was executed by defendant No. 3 as a consideration amount of Rs. 10,000/-.7. P.W. 1, the plaintiff stated that total area of the suit plot is 1.65 acres. He admitted that he got the land cultivated through Soma Oraon on Adhbatai, but there is no such pleadings. He admitted in his cross-examination that he and his brother Albert Tirkey has got half and half share over all the lands. He also admitted that there was a partition in presence of his mother, but there is no document in respect of the said partition and as such, he cannot say as to which plot was allotted to him and which was allotted to his brother, Albert Tirkey. He clearly deposed that he has got no any document to show that the plot No. 793 was exclusively fell in his share.8. P.W. 2 stated that the whole area of the plot was given in share of the Plaintiff during the partition, but he admitted in his cross-examination that he cannot say as to when the partition took place and the said partition could not be held in his presence.9. P.W. 3 claimed that the sit lands are in possession of the plaintiff, Henry Tirkey, but he admitted in his cross-examination that he cannot say about the total area of the suit land. He further stated that there was no document reduced into writing in respect of the partition. P.W. 4 admitted that no partition took place in his presence. On the other hand, the witnesses adduced on behalf of the defendant said that there was a partition of half and half share of both the brothers, the plaintiff and defendant No. 3.10. It is an admitted position that the plaintiff Henry Tirkey, the brother of defendant No. 3 Albert Tirkey already admitted in paragraph 4 of the plaint that there was a family partition of all the lands and properties of his father, Bhushan Tirkey in the month of January 1964, but it is claimed that the entire area of plot No. 793 was allotted in his share. But, 1 have already discussed above that there is no cogent evidence, either oral or documentary, placed from the side of the plaintiff to substantiate this story that actually the whole area of plot No. 793 was allotted to the plaintiff at the time of the said partition. It is also an admitted position that plot No. 793 is having a total area, i.e., 1.65 acres of land of which half area comes to 82.1 /2 decimals and, admittedly, the defendant No. 3, Albert Tirkey sold the half land, i.e., 82.1/2 decimals in favour of defendant Nos. 1 and 2 by a registered sale-deed as back as in the year 1976. It is also clear that defendant No. 3, Albert Tirkey sold the said land of his own share being half after due sanction accorded by the Deputy Commissioner, Ranchi, as required under Section 46 of the C.N.T. Act and so the question of fraudulent or duping the defendant No. 3 does not arise. It is obvious that defendant No. 3 sold his half share of the land of plot No. 793 being an area of 82.1 /2 decimals by a registered sale-deed for consideration and for which he is entitled to.11. In the above facts and circumstances of the case, I find that the learned Court below has rightly dismissed the suit and the judgment dated 23-12-1982, dismissing the suit is hereby, affirmed. Thus, I do not find any merit in the appeal which is accordingly dismissed, but without costs.