S. Awasthy, J.
1. This is defendants' appeal against the judgment and decree (preliminary) passed against them in Civil Suit No. 19-A/80 of the Court of District Judge, Raipur, dt. 1-4-1982, for partition and possession of half share in the agricultural lands, houses, thrashing-floor and wells, for payment of mesne profits, -- past and future -- and also for partition of the movable property.
2. The plaintiffs alleged that one AnandaSahu was the ancestor who left behind himthree sons -- Ramcharan, Shivsingh andSwarupsing. Ramcharan's only son Manglu,the original plaintiff, died during the pendencyof the suit. The present plaintiffs-respondentsare the legal representatives of the said Manglu.Shivsingn died in the year 1948 and his widow,in the year 1970. The defendants are the sons,grandsons and daughters-in-law of Shivsingh.Swarupsingh or his heirs have not beenimpleaded in the suit as it is alleged that hehad separated about 75 years ago and had noclaim in the ancestral property thereafter.
3. The case as pleaded by the plaintiff is that Ramcharan and Shivsingh remained joint on separation of Swarupsingh, Manglu, a minor, on the death of his father Ramcharan, was left to the care of his widowed mother who was taken by Shivsingh as his wife. He, therefore, lived with his widowed motherSuniyabai and Shivsingh. Out of the ancestral property in their hands, agricultural lands in villages Sale Bhata arid Tendukona were acquired. About 35 years prior to the filing of the suit, there was an arrangement in the family by virtue of which 4 acres of land of village Banskanta and 12 acres of land as wellas a house at village Kumhari Muda weregiven to the plaintiff Manglu for his subsistence. Those lands were mutated in his name in the revenue records on 9-12-1972. Manglu was beaten by the defendants and was ousted fromthe house and lands which were given to him under the family arrangement. He, therefore, filed a suit for partition and separate possession of his share being half in the property shown in Schedules A to D filed with the plaint and claimed mesne profits at the rate of Rs. 15,000/-per year for 3 years next before the date of filing the suit. Mesne profits pendente lite andshare in the moveable property were also claimed.
4. The defendants admitted the relationship but pleaded that Ananda (ancestor) had agricultural lands in village Ninda only. After the death of Ananda, Shivsingh and Swarupsingh handed over the property to their elder brother Ramcharan and relinquished their share in the joint Hindu Family property. They both came to the village Banskanta about 70 years ago and they earned their livelihood there and purchased la'nds separately out of their own income. The lands shown in Schedule B were purchased by the father-in-law of defendant No. 1 in his name in the year 1943. Swaroopsingh purchased 11.16 acres of land in village Banskanta and Shivsingh 10.49 acres of land in village Banskanta and 45.19 acres of land in village Kumhari Muda. Ramcharan had 3.74 acres of land in village Nisda. Thus, it is stated that prior to 1921-22, the three brothers had separated and the lands in possession of either Shivsingh or Swaroopsingh are their self-acquired properties not liable to partition.
For Manglu, it is pleaded that he came to live in Banskanta and purchased 7.29 acres of land in village Kumhari Muda. The alleged marriage of Shivsingh with Suniyabai, widowof Ramcharan, is also denied. The joint requisitions as alleged by the plaintiff were also denied by the defendants.
5. The defendants further pleaded that in the year 1970, the defendants came to know that Manglu surreptitiously got his name recorded in the revenue papers as joint owner with the defendants. They got those entries corrected. The allegation regarding dispossessing Manglu by them has also been denied. They claim to be in possession of those lands throughout. A plea of adverse possession is also raised in the alternative. The suit was pleaded to be barred by limitation.
6. The trial Court found that Manglu and Shivsingh remained joint and there had been no partition between them of the joint familyproperty in suit. All the properties shown in Schedules A to D were held to be joint undivided Hindu family properties liable to partition in equal shares between the said two branches. Mesne profits at the rate of Rs. 12,937/- per annum was granted. The suit was held to be within tune.
7. The learned counsel for the appellants challenged the findings of the District Judge and alleged that the burden to prove thatthere was no partition was on the plaintiff which was wrongly placed on the defendants. He relied on the case of Bhagwati Prasad Sah v. Rameshwari Kuer, AIR 1952 SC 72. It has been held in that case that on the admitted facts of that case neither party had any presumption on his side either as regards jointness or separation of the family. Since one of the coparceners had separated himself from the other members of the joint family and had his share in the joint family property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. Nor there could be any presumption for separation with regard to all The evidence of both the parties has to be evaluated for coming to the conclusion if the two brothers Ramcharan and Shivsingh remained joint even after the separation of Swaroopsingh from the joint Hindu family.
8-9. It was further argued that thecumulative effect of all the facts andcircumstances would demonstrate that thebrothers had separated long back and therehad been a partition as pleaded by thedefendants. Reliance was placed on the casesof Yellappa Ramappa Naik v. Tippanna, AIR1929 PC 8; Ganesh Dutta v. Jewach, (1904)ILR 31 Cal 262 : 31 Ind App 10 and MukhramRai v. Chandradeep Rai, AIR 1936 Patna 68.The learned counsel also submitted that afterseverances of status in a joint Hindu family, ifa member acquires property with joint familyfunds, the said property would be his individualproperty not liable to be partitioned. He reliedon the case of M. N. Aryamurthi v. M. L.Subbaraya Setty, AIR 1972 SC 1279, para 17and further submitted that the facts similar toone in the present case were held sufficientfor finding that there had been separation inthe status of joint Hindu family in the case ofDukhi Dibya v. Landi Dibya, AIR 1978 Orissa182.
10. The date of death of Ananda Sahu is 16-12-1918. It is not clear from the pleadings of the plaintiff that Swaroopsingh had separated either during the lifetime of Ananda Sahu or after his death. The defendants have stated that Shivsingh and Swaroopsingh were unable to maintain themselves in village Nisda. Hence, they entrusted the share of their ancestral property to Ramcharan and started living separately earning their livelihood and they acquired the property by their labour separate from each other. This plea is quite contrary to the plea of partition on the basis of which they wish to build up their case and allege that there had been a partition in the joint Hindu family. It is also alleged that Mangludid not like to live in village Nisda. Hence he came to live in Banskanta about 5-6 years prior to 1921-22 and acquired 7.29 acres of land. From the pleadings of the defendants, it appears that Ramcharan had died prior to 1921-22 and had left a minor son Manglu who, started living with Shivcharan in village Banskanta. It is also clear from their pleadings that Ramcharan was alive after the death of Ananda. He would have, therefore, died in between 1919 and 1921 when Manglu would have been a boy aged about 4 months. The appellants during the course of the arguments have conceded that the land in Banskanta was ancestral land. They say that this ancestral land was partitioned and was divided only between Shivsingh and Swaroopingh. It was argued that 3.76 acres of land of village Nisda fell to the share of Ramcharan, 10.36 acres to the share of Shivsingh and 11.16 acres of land to the share of Swaroopsingh. Though all these facts are not pleaded but are sought to be introduced by an application for amending the written statement and arguments are advanced on that basis.
11. The application for amendment of written statement has been filed in this appeal on 24-10-1983 stating that the appellants were born after the date of the partition alleged by them. They did not know about the properties possessed by late Ananda (ancestor). Consequently, in paras 4 and 5 of the written statement they wanted to plead that the properties in village Banskanta were not the self-acquired properties of Swaroopsingh and Shivsingh respectively. Exhibit P-3, certified copy of Jamabandi of the year 1902-03, was filed on 22-3-1982 after the close of the case. They were not afforded any opportunity to file documents in rebuttal or to amend their pleadings before the judgment was pronounced on 1-4-1982. They came to know that the lands in village Banskanta belonged to Ananda Sahu who died in 1918 and the said property was also the subject-matter of partition between the three brothers. The lands of village Banskanta in the said partition were allotted to the shares of Swaroopsingh and Shivsingh equally and the land of Nisda was allotted to Manglu. Thus, by this proposed amendment, the appellants want to change the stand taken by them earlier and wish to admit that the land in Banskanta was also the ancestral property. Further, they wish to plead that the said lands were partitioned between Swaroopsingh, Shivsingh and Manglu. Thecounsel for the appellants argued that in special circumstances, as in the present case, the defendants could be permitted to amend their pleadings by withdrawing certain admissions or the statements and put up a case contrary to one set up earlier. He relied on the cases of Ishwardas v. State of Madhya Pradesh, AIR 1979 SC 551, Nrisingh Prasad Paul v. Steel Products Ltd., AIR 1953 Cal 15 and Hari Dass v. Kali Dass, AIR 1979 Him Pra 54.
12. It is true that the amendments could be allowed at appellate stage granting permission to the defendants to raise new pleas or even to alter the pleadings. The principle applicable for amending the written statement is more liberal than the principle applicable for amending the plaint. But the Courts have to see whether the amendment at such belated stage is bona fide and necessary for the purpose of determining the real questions in controversy between the parties. The amendment is sought after taking the finding of the Court below on the issue regarding the land in Banskanta being ancestral, contrary to the plea of acquisitions by Swaroopsingh and Shivsingh. Moreover, it would be contrary to the evidence led by the defendants. The proposed amendment is of no consequence. The finding of the trial Court to that effect is not challenged by the defendant-appellants. This Court is bound to return a finding that those lands were ancestral properties of the parties.
13. It has also been proposed in the application to amend the written statement that Manglu sold his lands of village Nisda and out of the said sale consideration, he purchased lands in village Kumhari Muda. He subsequently sold a part of those lands to different persons and dishonestly filed the suit. It is apparent from the above proposed amendments that the defendants intend to have another innings and they wish to contest the suit by filling in the lacunae. As a matter of fact, the defendants had pleaded partition and they had to substantiate the same by producing evidence in support of then claim which they failed. The plea of prior partition has not been established by the evidence on record which now they wish to introduce and have the trial de novo by moving the proposed amendment application. We, therefore, reject, the application.
14. The defendants-appellants have also filed an application under Order 41 Rule 27 read with Section 151, C.P.C. on 24-10-1981 for taking on record certain documents. The documents proposed to be taken on record are : --
(1) Entries from the death register showing the death of Ananda Sahu in the year 1918.
(2) Copy of Jamabandi of the year 1921-22 of village Kumhari Muda, showing the suit Khasra numbers recprded in the name of one Mst. Janki.
(3) Copy of Kistbandi Khatauni of 1951-52 of village Kumhari Muda, showing the lands recorded in the name of Manglu.
(4) Copy of Kistbandi Khatauni of 1969-70 of village Kumhari Muda, showing the lands recorded in the name of Manglu in that year.
(5) Copy of Misal Bandobast of the year 1902-03 showing the details of Malguzari lands in village Kumhari Muda, and
(6) Copy of Misal Bandobast of the year 1921-22, showing the Khasra numbers of the disputed lands in village Kumhari Muda at that time.
It is stated in the application that the applicants-defendants came to know after the delivery of judgment the fact that Ananda had some lands in Banskanta also and that the lands at Banskanta were allotted to Swaroopsingh and Shivsingh in the partition and further that Manglu had not inherited the land in village Kumhari Muda from his first wife but had acquired the same from the sale consideration of his lands sold in village Nisda. The aforesaid documents, it is alleged, shall prove these facts.
15. The documents sought to be produced as evidence, in no manner, advance the case of the defendants-appellants. The year of the death of Ananda is no longer in dispute between the parties. The copy of the Jamabandi of village Kumhari Muda for the year 1921-22 showing Jankibai as the recorded owner of the Khasra numbers in suit is not relevant to the controversy in suit. It merely shows that the said lands were not the ancestral property of the parties in suit. It is not pleaded or proved that Jankibai had no connection with the wife of Manglu. There is no connecting link between the proposed evidence and the inference which is sought to be drawn by filing this document. The other documents pertaining to the village Kumhari Muda for the years 1951-52 and 1969-70 do not establish any plea of the defendants. The other document-Misal Bandobast of the year 1921-22 of village Kumhari Muda shows the name of Shivsingh as the person in possession of those lands and the name of Bisambardas as the Malguzar of the village. This document is also of no consequence. The document, Misal Bandobast of the year 1902-03 of village Kumhari Muda is also not relevant as it merely shows that there was no ancestral land of the parties in village Kumhari Muda. This is nobody's case that there was any ancestral land in village Kumhari Muda.
16. The legitimate occasion for the application of Order 41, Rule 27, C.P.C. is when on examining the evidence as it stands, some lacuna or defect becomes apparent and not where a discovery is made outside the Court of fresh evidence and the application is made to import it The true test, therefore, is whether the appellate Court is able to pronounce judgment on materials before it without taking into consideration the additional evidence sought to be produced. The admissibility of the additional evidence under this rule depends upon whether or not the appellate Court requires it to enable it to pronounce judgment Even under the clause 'or for any other substantial cause' mentioned in Order 41, Rule 27(1)(c), the requirement must be that of the Court and not of the party. If the evidence could have been tendered in the lower Court and the party has not been vigilant in producing it then that evidence cannot be allowed to be let in at the appellate stage on the supposition that a substantial cause for producing it exists in the appeal. This is also the view taken by a Division Bench of this Court in Kashibai Nathusingh v: Tulsabai Delansingh Lodhi, 1961 MPLJ 906.
17. The Clause (aa) in Order 41, Rule 27, C.P.C. has been inserted by Act No. 104 of 1976 (Section 87(xiv) 1-2-77). Under the amended provision, the appellants had to satisfy and establish that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after the exercise of the diligence be produced by him at the time when the decree appealed against him was passed We are not satisfied that this clausecould be attracted in the present case. The appellant had all the occasion to see the revenue records of village Kumhari Muda by exercise of due diligence. They cannot take advantage of their inaction and negligence. The Clause (b) inserted vide, amendment dt 16-9-1960 by the High Court of Madhya Pradesh is almost the same as that which has been introduced by Amendment (aa) referred to above. We, therefore, reject the application of the appellants seeking to adduce documentary evidence under Order 41, Rule 27, C.P.C.
18. The learned counsel for the appellants placed before us the following circumstances for holding that there had been a partition between the three brothers as pleaded by them: --
(1) Name of Manglu plaintiff was never mutated in the lands in suit.
(2) Though he got his name mutated over some of the lands but the same was corrected by the revenue authorities and no appeal was filed therefrom. The order of the revenue authorities became final.
(3) The lands at village Nisda were recorded in the name of Manglu since 1929-30, vide Exs. D-3, D-4 and D-5.
(4) Since/the year 1921-22, the name of Shivsingh was mutated over the lands of village Banskanta and Kumhari Muda.
(5) Manglu was a major in the year 1921-22 or at least in the year 1929-30. The absence of his name in revenue records establishes that the properties over which his name was not mutated must have been the self-acquired properties of others. Manglu's name was mutated in the revenue papers of village Nisda alone. Whatever lands Ananda had in village Nisda were recorded in the name of Manglu. Exs. D-5, D-7, D-8 and D-9 show that the Nisda lands were recorded in the name of Manglu alone since 1929 and the lands of Banskanta and Kumhari Muda in the name of Shivsingh since 1921-22 and some of the lands of village Banskanta were recorded in the name of Swaroopsingh alone since 1921-22.
(6) All the brothers and their legal representatives were residing separately from each other since more than 45 years which was admitted by Manglu as well.
(7) Manglu was residing in village KumhariMuda and had purchased some land there which was mutated in his name. In the same manner, the other branches bad purchased lands in different villages exclusively in theirnames.
(8) There is no reliable evidence regarding the alleged family settlement which was pleaded by the plaintiff. Even if the family settlement is accepted, it would not establish the jointness as pleaded by the plaintiff.
(9) Kejuram (PW. 2) is an unreliable witness. The statement of Manglu (PW. 1) is self-serving and false.
19. Before we refer to the evidence led in the case, we would like to discuss certain cases dealing with this aspect:
In the case of Bhagwan Dayal v. Mst. Reoti Devi, AIR 1962 SC 287 at p. 294 it has been held that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time.
In Ganesh Datta's case ((1904) ILR 31 Cal 262) (supra), it was held that cesser of commensality is an element which may properly be considered in determining the question whether there has been a partition of joint family property but it is not conclusive. It is, therefore, necessary to consider whether the evidence in other respects supports or negatives the theory that the cesser in this case was adopted with a view to partition in the legal sense of the word
A member may become separate in food and residence merely for his convenience. Neither ascertainment of shares nor filing a suit for partition is the evidence of separation (see, Palani Ammal v. Muthuvenkatachala Moniagar, AIR 1925 PC 49.
In Dukhi Dibya's case (AIR 1978 Orissa 182) (supra), it was held that separate living in the same village in different unconnected houses, joint record with specification of shares and separate payment of house taxes are compatible with separate living for convenience and would not lead to the conclusion of previous partition.
In the case of Shyamlal v. Ranbirsingh, AIR 1951 All 386, it has been held that apart from the revenue records showing separate Khatas of Sir and Khudkast lands in the names of two brothers who constituted joint family, there was express indication in their letters written to their near relations to effect partition and separate suits were filed by the brothers against tenants, hence partition was inferred.
20. Kejuram is the son of Swaroopsingh representing the original male ancestor Ananda. He has been examined as P.W. 2. He has stated that his father Swaroopsingh was allotted 10 acres of land of village Banskanta and the remaining lands remained joint with Shivsingh and Manglu. Manglu and Shivsingh were living joint in one room of the ancestral house and the other room was in his possession. About 30 to 35 years ago, Shivsingh allotted 4 acres of land of village Banskanta and 12 acres of land of Kumhari Muda for his subsistence. Till then, they were joint. They have joint lands in village Tendukona, Banskanta, Kumhari Muda and Sale Bhata. Manglu had been ousted by the defendants about 8 to 9 years ago. He had received about 7 acres of land from the side of his first wife out of which about 3 acres of land have been sold away.
21. Manglu (P.W. 1) had stated that he had ancestral agricultural lands in village Nisda and Banskanta. He was aged about 4 months at the time of the death of his father. He was living with Shivsingh in village Banskanta along with his mother when Shivsingh had married after the death of his father Ramcharan. Shivsingh sold the lands of village Nisda and shifted to Village Banskanta thereafter. They belonged to a poor family and after the sale of the lands at Nisda, they had the agricultural land at village Banskanta a few years before 1921-22. Shivsingh separated Swaroopsingh by giving him 10 acres of land of village Banskanta. Manglu remained joint with Shivsingh for a sufficiently long time thereafter. The lands in villages Tendukona, Kumhari Muda and Sale Bhata were acquired out of the joint earnings from the land at village Banskanta. He was aged about 20 to 22 years at the time of his first marriage. His first wife had about 7 acres of land in village Kumhari Muda which he acquired. About 2 years after the second marriage, he was allotted 4 acresof land in village Banskanta and 12 acres of land in Kumhari Muda for his subsistence. He cultivated those lands for about 45 years. Shivsingh died about 33 years ago but Jhangloo, the son of Shivsingh and other defendants dispossessed him from those lands. The reason why Manglu was compelled to live separate from Shivsingh, as stated by him, is that the relationship between the second wife of Manglu and the wife of Shivsingh (other than his mother) became very strained.
22. Mahasingh has been examined as P..W. 3. He stated that he had seen Manglu cultivating about 10 to 12 acres of land in village Kumhari Muda but he had been dispossessed by the defendants therefrom about 8 to 9 years ago. Narsingh (P.W. 4) has also stated almost the same fact and further had stated that Manglu had about 6-7 acres of land in village Kumhari Muda apart from those mentioned above which he acquired from his in-laws by first marriage.
23. The statements of Manglu are further corroborated by documentary evidence, Ex. P-8, which is a certified copy of the Jamabandi of the year 1902-03 showing that Ananda had 19-92 acres of land in village Banskanta. This completely falsifies the statement of Indal (D.W. 3) who had stated that the joint family had no ancestral land in village Banskanta. The entire case put up in defence as already stated in paras 4 and 10 of this judgment has been falsified by the said documents. The trial Judge has dismissed the evidence giving his reasons for believing the plaintiffs witnesses and disbelieving the defendants' witnesses and the case set up by them in paras 9 to 12 of his judgment and we do not wish to repeat the same. We are in complete agreement with the findings recorded by the trial Court.
24. Thus, we held that the purchase of lands at village Kumhari Muda, Sale Bhata and Tendukona were made only out of the savings of the joint family property of Shivsingh and Manglu. The said properties are liable to be partitioned. The case set up by the defendants has not been established. Consequently, Manglu had half share in the joint Hindu family properties shown in Schedules A to D.
25. No other points were urged before us by the learned counsel for the appellants.
26. We, therefore, dismiss the appeal with costs. Counsel's fee as per Schedule, if certified.