Oral Partition Can Be Proved Through Oral Evidence, Long Separate Possession: Jharkhand High Court
The Jharkhand High Court has held that oral partition can be accepted on the basis of oral evidence where parties have been separately possessing and enjoying their respective shares for several decades. The Court observed that although there was no written partition, the witnesses had proved that the properties had already been partitioned and the parties were separately enjoying their respective shares.
A Single Judge Bench of the Justice Sanjay Kumar Dwivedi was hearing a writ petition challenging the order dated 06.07.2007 passed by the Commissioner, Santhal Pargana Division, Dumka, dismissing the review application filed by the petitioners against the order dated 08.01.2007, whereby the Commissioner had affirmed the orders passed by the Charge Officer and Assistant Settlement Officer dismissing the partition suit.
The petitioners had filed Partition Suit No. 97 of 1975 seeking partition of the suit lands specified in Schedule B of the plaint, situated at JB No. 10/8 of Mouza Kanhaiyapur No. 33, Sardari Circle Bashkinath, District Dumka. The parties were admittedly descendants of common ancestors. The petitioners claimed that the suit lands were recorded jointly in the Gantzer Settlement Parcha in the names of their ancestors, namely Chinu Kuwar, son of Kani Kuwar, and Beni Kuwar and Tony Kuwar, sons of Nagi Kuwar.
The respondents opposed the partition claim and contended that an oral partition of the lands had already taken place and that the parties had been separately possessing their respective shares. The partition suit was transferred to the Assistant Settlement Officer, Dumka under Regulation III of 1872. By order dated 28.10.1983, the Assistant Settlement Officer dismissed the partition suit after holding that partition had already taken place between the parties.
The petitioners challenged the order before the Charge Officer, Dumka in Title Appeal No. 08 of 1983. The appeal was dismissed on 22.08.1987, affirming the findings of the Assistant Settlement Officer. The petitioners thereafter approached the Commissioner, Santhal Pargana Division, Dumka in Title Revision No. 24 of 1987. The revision was dismissed by order dated 08.01.2007. The review application filed against the said order was also dismissed on 06.07.2007, leading to the filing of the writ petition before the High Court.
Senior Advocate Rajeeva Sharma, appearing for the petitioners, submitted that the authorities had failed to appreciate the documentary evidence and had only relied upon oral evidence to conclude that partition had already taken place. It was argued that the findings recorded by the authorities were incorrect and that the impugned orders were liable to be set aside.
Opposing the petition, counsel appearing for the State submitted that all the authorities had appreciated the evidence of the witnesses and had correctly found that partition had already taken place. It was further submitted that there were concurrent findings of three authorities and that there was no illegality in the impugned orders warranting interference by the High Court.
The Court held that the Assistant Settlement Officer had considered the submission of the defendants that, except bandh and kund, none of the properties were in joint possession since 10.05.1977. The bandh and kund continued to be jointly enjoyed, while the remaining properties had already been separated before the Gantzer Settlement. The Court observed that the Assistant Settlement Officer had found that although there was no written partition, the witnesses had proved that, except bandh and kund, the remaining properties had already been partitioned and the parties were enjoying their respective shares separately.
The Court further noted that the plaintiffs had admitted before the Assistant Settlement Officer that all were raiyats and were separately enjoying their respective properties, and that such arrangement had continued for more than 50 years pursuant to a settlement made by their elders. The Court also noted that the Charge Officer had appreciated the evidence of the witnesses and found that the plaintiffs had admitted that they were residing separately even before the Gantzer Survey Settlement.
The Commissioner had examined the documents as well as oral evidence and found that the petitioners had not specified the possession of any party in relation to which defendant party. In the absence of such specification, the entries in the remarks column of the parcha were sufficient proof to show possession of the parties.
The High Court held that, in view of the concurrent findings of the three authorities, the writ court was not required to reappreciate the evidence. The Court further found force in the submission of the respondents that oral evidence could be relied upon and that the same was supported by the judgment of the Supreme Court in Kale & Ors.
Cause Title: Bhagirath Kumar and Ors v. State of Jharkhand and Ors
Case Number: W.P.(C) No. 5443 of 2008
Appearance:
For the Petitioners: Mr. Rajeeva Sharma, Sr. Advocate; Mr. Om Prakash, Advocate; Mr. Ritesh Kumar, Advocate.
For the State: Mr. Vineet Prakash, A.C. to S.C.-IV.
For Respondent Nos. 5 to 15: Mr. Ajay Kumar Sah, Advocate; Mr. Souma Ranjan Mukherjee, Advocate.