Narayan Roy, J.
1. This letters Patent Appeal is directed against he judgment and decree dated 1.10.1991, passed by a learned single Judge of this Court in First Appeal No. 113 of 1986 (R), whereby the appeal filed by the defendants has been allowed and the suit has been dismissed holding that there had already been a partition and as such the suit for partition instituted by the plaintiffs-appellants was not maintainable.
2. The plaintiffs-appellants filed Partition Suit No. 65/84/27/85 praying for partition of their half share in the suit properties slating therein, inter alia, that the parties were the descendants of one Gendo Koeri, who had two sons, namely, Lalit Koeri and Ramchander Koeri. The defendants are the descendants from the Branch of Lalit Koeri, whereas the plaintiffs are from the Branch of Ramchander, Koeri, Lalit Koeri had three sons, namely, Puran Koeri (who died issueless), Bhikhwa Koeri and Jugal Koeri, whereas Ramchander Koeri had only one son, namely, Kehri Koeri, who died leaving behind his son, the plaintiff No. 1 (Appellant No. 1) Moti Koeri and plaintiff No. 2 (Appellant No. 2) Smt. Harli Devi is the wife of plaintiff No. 1, Since the plaintiff No. 1 represented the branch of Ramchander Koeri, one of the sons of Gendo Koeri, he claimed half share in the suit properties. The plaintiffs had brought me suit in question only for partition of the lands, appertaining to Khata No. 92, of village Bajato and it was mentioned in the plaint that the lands appertaining to Khata No. 105 were already partitioned half and half between me plaintiffs and the defendants.
3. According to the plaint, the case of the plaintiffs is that the parties are governed under the Mitakshra School of Hindu Law and owing to the growth in the family, the recorded tenants, the parties to the suit, separated in mess and cultivation the parties also started cultivating the suit lands separately for the sake of convenience, but mere was no partition in the family by metes and bounds. However, plaintiff No. 1 sold a piece of land, measuring 4.22 acres for legal necessity in favour of plaintiff No. 2, out of his amended share and put her in possession. Thereafter, the name of plaintiff No. 2 was mutated and she remained in peaceful possession.
4. The further case of the plaintiffs is that although in that survey record of rights some plots are shown to be in Kabjawari of some parties and some plots in the Kabjawari of other parties and some plots are shown as Shamilat, but such Kabjawari entry was never adhered to and the parties are still joint cultivating merely as per convenience and since there was no partition of the family properties by metes and bounds, the plaintiffs were facing certain difficulties in improving the lands and, therefore, they requested the defendants to partition the suit properties half and half.
5. The case of the defendants, as stated in the written statement, inter alia, is that the sons of Lalit Koeri on the one hand and Kehari Koeri on the other hand, partitioned the land of Khata Nos. 92 and 105 of village Bajto half and half by mates and bounds prior to the last survey and settlement operation and, accordingly, separate Kabjawari was recorded.
6. The learned trial court, as it appears, upon consideration of the pleadings of the parties and evidence on record decreed the suit holding that there was no partition by metes and bounds in between the parties, so far as the lands of Khata No. 92 are concerned. The learned Single Judge of this Court, however, held in the First Appeal that since the parties were separate in mess, cultivation and possession and there had been separate transaction of lands, there was a previous partition in the family and the suit in the present form for partition of the properties half and half was not maintainable and the learned trial court has wrongly raised a presumption of jointness of a Hindu family, which was not applicable in the facts and circumstances of this case and it has further been held by the learned single Judge of this Court that the plaintiffs have failed to prove that there was unity of title or unity of possession in between the parties at the time of institution of the suit.
7. Mr. N.K. Prasad, learned Counsel appearing on behalf of the plaintiff-appellants, submitted that the learned Single Judge of this Court has not evaluated the evidence on record in the correct perspective of the case and since the High Court was the final court of facts, the evidence would have been considered. He further submitted that since the defendants have already admitted in Paragraph No. 7 of the written statement that there was partition of the suit properties half and half, this Court should have accepted the same and should have dismissed the First Appeal and affirmed the judgment and decree passed by the learned trial court.
8. Mr. Prasad further submitted that this Court, being the final court of facts, should have considered each and every piece of evidence, both documentary as well as oral. He further submitted that Ext. 4, the certified copy of the Khatiyan, which was filed by the plaintiffs, has npt been taken into consideration by this Court and the oral evidence of the plaintiffs and the defendants has also not been properly evaluated.
9. On the other hand, the learned Counsel appearing on behalf of the defendants-respondents contended that the learned single Judge of this Court, being the final court of facts, has already considered the evidence on record and since the plaintiffs failed to prove that there has been unity of title or unity of possession at the time of institution of the suit, this Court has rightly held that there had been a previous partition in between the parties and as such the present suit was not maintainable.
10. We have heard the parties at length and gone through the impugned judgment.
11. From the impugned judgment it appears that the learned single Judge of this Court, though has taken into consideration the materials on record, has not taken into consideration Ext. 4, the certified copy of the Khatiyan and has not recorded a finding in the light of Ext. 4, read with Paragraph No. 7 of the written statement. Ext. 4, the Khatiyan, appears to be an important piece of documentary evidence showing that plot Nos. 677, 686, 735 and 783 were recorded as Samilat. It also shows that 2.79 acres of land was recorded in the Kabjawari of Puran Koeri and 2.57 acres each in Kabjawari of Bhikhwa Koeri and Jugal Koeri and only 2 acres in Kabjawari of Kheri and as per the record of rights, the plaintiff No. 1 Moti Koeri was entitled for 4.49 1/2 acres of land and the defendants were jointly entitled for 4.49 1/2 acres of land.
12. In Paragraph No. 7 of the written statement, the defendants have categorically stated that the sons of Lalit Koeri on the one hand and Kehari Koeri on the other hand, had partitioned the lands of Khata Nos. 92 and 105 half and half by metes and bounds prior to the last survey and settlement operation and, accordingly, separate Kabjawari was recorded. Even as per the case of the defendants that before the last survey and settlement operations the lands in question were partitioned half and half, the Khatiyan (Ext. 4) would not have shown that some of the plots, as referred above, were recorded as Samilat and 2.79 acres were recorded in the Kabjawari of Puran Koeri and 2.57 acres of land in Kabjawari of Bhikhwa Koeri and Jugal Koeri and only 2 acres in Kabjawari of Kehri Koeri, father of plaintiff No. 1. This clearly goes to show that there had been no partition by metes and bounds prior to last survey and settlement operations and the parties were in possession of the lands according to convenience and they were cultivating. the same.
13. It appears that the learned Single Judge of this Court has set aside the judgment and decree passed by the learned trial court on the premises that the parties were separate in mess, cultivation and possession and they were transacting the lands separately. Therefore, presumption of jointness did not continue and, therefore, held that there had been a previous partition between the parties and there was no unity of title and unity of possession at the time of institution of the suit.
14. The learned single Judge of this Court has also taken into consideration the fact that though admittedly mere had been partition of some of the lands appertaining to Khata No. 105, yet at the same time held that the question, as to whether there had been a partial partition or not, being a question of fact, and the same is dependant on the facts and circumstances of each case. In this case the admitted position is that there was partial partition in between the families of the plaintiffs and the defendants with regard to the lands of Khata No.
105. So far as the lands of Khata No. 92 are concerned, the parties were cultivating the same according to their convenience. There is nothing on record to show, either from the pleading of the parties or from me evidence that the lands of Khata No. 92 were partitioned by metes and bounds.
15. The learned single Judge of this Court proceeding on the basis that since the lands of Khata No. 92 have been transferred by the parties separately and they are cultivating me same separately, there cannot be said to be Unity of title and possession over the same. In absence of evidence, it is difficult to hold mat the lands, appertaining to Khata No. 92, were partitioned by metes and bounds in between the families. Even though there is partial partition with regard to some of the properties, the left over properties are liable to be partitioned and it is permissible under the Hindu Law. In this connection, reference may be made to the case of Kashinathsa Yamosa Kabadi etc. v. Narsingsa Bhaskarasa Kabedi etc. .
16. Merely because mere are certain documentary evidence on record to show that the parties have transacted certain lands, mere cannot be a presumption in law that mere was no unity of title and possession because of the transactions of the lands, coupled with the fact that the parties were cultivating the lands separately. I have already indicated above that Ext. 4, the Khatiyan, has not been taken into consideration by this Court in the First Appeal in the light of the statement made in Paragraph No. 7 of the written statement but, prima facie, from Ext. 4 and the statement made in Paragraph No. 7 of the written statement, I am satisfied tiiat there is no denial of the fact by the defendants that the plaintiffs are entitled to half share in the suit properties.
17. However, the admission of defendants about half and half share in the joint family properties of the defendants and the plaintiffs and the pleadings of fhe defendants that there was partition by metes and bounds, since not being corroborated by Ext. 4, the Khatiyan, as discussed above, in my considered opinion, this Court should not have decided the case based on the grounds out side the plea of the parties. I further find that Ext. 4 was an important piece of evidence having direct bearing on the dispute issue, and this Court being final court of facts should have considered the same in the correct perspective of the pleadings of the defendants, as made in Paragraph No. 7 of the written statement.
18. The learned trial court has taken into consideration Ext. 4 and has discussed the evidentiary value of the same, in the light of the pleadings of the parties, and held that there was no partition by metes and bounds in between the parties and the plaintiffs have proved their case showing unity of title and possession over the same.
19. In my opinion, therefore, and in view of the discussions aforementioned, I concur-with the findings of the learned trial court and held that there was no previous partition by metes and bounds in between the parties with regard to the lands in question and the suit was liable to be decreed.
20. For the discussions and reasons aforementioned, I allow this Letters Patent Appeal, set aside the judgment and decree passed by the learned single Judge of this Court in First Appeal No. 113 of 1986 (R) and restore the judgment and decree dated 19.4.1986 passed by the 2nd Additional Subordinate Judge, Giridih in Partition Suit No. 65/27 of 1984/85. However, in the facts and circumstances of the case, there will be no order as to costs.
B.L. Yadav, A.C.J.
21. I have had the advantage of perusing the opinion of Hon'ble Brother Narayan Roy, J. I agree with the conclusion arrived at that the Letters Patent Appeal deserves to be allowed. But considering the significance of the question involved, I would like to add a few words of my own. The facts have already succinctly. been given in the judgment of Hon'ble Brother Narayan Roy, hence the same need not be repeated.
22. The principal question involved for our consideration, was as to whether the Hon'ble single Judge could reverse the findings of the trial court ignoring the material piece of evidence and the pleadings of the parties. Ext. 4 was Khatiyan which was taken into consideration by the trial court and interpreting Ext. 4, keeping in view the statements made in Paragraph 7 of the written statement, the trial court has recorded its Findings, While discussing Issue No. 4 under Paragraph 5 of the judgment, that Ext. 4 (Khatiyan), in respect of khata No. 92, shows that some plots i.e. Plot Nos. 677, 686 and 733 were recorded as Shamilat. This also shows that 2.79 acres has been recorded in the Kabzadari of Puran, 2.57 acres in the Qabzadari of Bhikwa and Jugal and only two acres recorded in the Qabzadari of Bhikwa and Jugal and only two acres recorded in the Qabzadari of Kehar. In view of the record of right Moti Koeri, plaintiff No. 1 is entitled for 4.49 1/2 acres of land and the heirs of Puran Koeri, Bhikwa Koeri, Jugal Koeri are jointly entitled for 4.49 1/2 acres of lands. It was stated as an admission in Paragraph 7 of the written statement by the defendant-respondent that the recorded tenants had partitioned the lands of Khata No. 92 half and half by metes and bounds prior to the survey and settlement operation and accordingly the qabzadari was recorded; where as Ext. 4 shows that only 2 acres of land are under the qabzadari of Kehat Koeri (father of plaintiff No. 2). What is more significant is that the expression "qabzadari" is written only in the sense that one of co-tenant or co-sharers has occupied certain piece of land, whereas in respect of other piece of land, some other co-tenant or co-sharers are in occupation. This expression Qabzadari does not indicate partition through metes and bounds. But after the discussion of the entire important evidence on record, including Ext. 4 and the statement of the defendant in Paragraph 7 of the written statement and other evidence, the trial court concluded that there was no partition. The trial court held that the parties to the suit had not partitioned the land of Khata No. 92 half and half, prior to the survey by metes and bounds, but these findings were reversed by the Hon'ble single Judge without considering those important documentary evidence and the statements made in the written statement In such situation can that be done while exercising the jurisdiction of the first Appellate court.
23. It is well settled that if a finding of fact is arrived at, ignoring an important piece of evidence, such finding cannot be sustained in law. There are plethora of decisions of the Apex Court in support of this proposition. In Radha Nath Seal v. Haripada Jana and Ors. it was held by their Lordships of the Supreme Court as follows:
...The High Court has pointed out that certain material evidence in the shape of documents was not considered by the first Appellate court and a good deal of assumption of fact were made.
If that was so the High Court was justified in making interference in exercise of the jurisdiction under Section 100 of the Code. In Smt. Sonawati and Ors. v. Sri Ram and Anr. it was observed as follows:
...In Ext. A/1 the name of Pritam Singh was entered in the 'remarks' column against Survey No. 723/1 which had fallen in an earlier partition to the share of one Kunjilal and in respect of which Pritam Singh had never claimed any right. The First Appellate Court did not refer to these important place of evidence. His conclusion cannot be regarded as binding upon the High Court in Second Appeal.
In Damadi Lal v. Parashram under Paragraph 14 it was observed as follows:
...It thus appears that the lower Appellate Court overlooked a very material part of the evidence bearing on the question. It is well established that if a finding of fact is arrived at ignoring important and relevant evidence the finding is bad in law." See Radha Nath Seal v. Haripada Jana, .
In Ram Murty Gupta v. Suresh Chandra Agrawal it was held relying upon the case of Smt. Sonawati v. Sri Ram (supra) that since the first Appellate court did not refer to important pieces of evidence, the conclusions reached by cannot be regarded as binding upon the High Court in Second Appeal.
24. Omission to consider the material evidence amounts to error of law, and on that account it is stated to be a substantial question of iaw and the second Appellate court is justified in reversing the findings of the first Appellate court long ago. In Sheikh Rahmat Ilahi v. Mohammad Hayat Khan 1943 Privy Council 208 and Damusa v. Abdul Samad 1919 Privy Council 29 it was ruled that the findings based either on misleading or ignoring the material evidence amounts to error of law.
25. Recently in J.B. Sharma v. State of M.P. his
Lordship Hon'ble L.M. Sharma, J., (as his Lordship then was) (for whom I have profound regards), held at Page 705 Paragraph 8 as follows:
...It will thus be seen that the first Appellate court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire document on the basis of which the finding was recorded. The High Court was, therefore, justified under Section 100 of the Code of Civil Procedure to set aside the finding.
26. In view of the aforesaid statement of law it is crystal clear that even while exercising the jurisdiction under Section 100 of the Code in Second Appeal where interference can be made only on the substantial question of law, in that event also if the first Appellate court has set aside the findings recorded by the trial court on an assumption and not supported by any evidence and further having failed to consider the entire evidence on the record interference can be made. Our jurisdiction is somewhat different than the jurisdiction of the second Appellate court.
27. In view of the discussions made above, it is crystal clear that the important documentary evidence (Ext. 4) Khatiyan in respect of Khata No. 92 indicating Qabzadari entries, which only indicates that by private arrangement different co-sharers were recorded over different plots, which would indicate that there was no partition through metes and bounds, but the same has not been considered by the Hon'ble single Judge. Similarly the statements made in Paragraph 7 of the written statement of the defendant-respondent and other evidence on record were not considered. Hence the findings recorded by the Hon'ble single Judge cannot be said to be based on appraisal of the evidence on record. Accordingly, the judgment of me Hon'ble single Judge is rendered erroneous in law and deserves to be set aside.
28. In view of die premises aforesaid the present Letters Patent Appeal succeeds and the same is allowed and the judgment of me Hon'ble single Judge is set aside and that of me trial court restored. Inescapable conclusion is that the suit of the plaintiff-applicant is hereby decreed but without any order as to costs.