A suit for partition was filed by respondent no.1 herein before the Sub Court (she died during the pendency of this appeal and her legal representatives are impleaded as respondent nos.26 to 29). A preliminary decree for partition was granted by the Sub Court and in appeal by contesting defendants-appellants, it was confirmed by District Court. Challenging the said decree, this Second Appeal is filed by second appellant and legal heirs of first appellant.
2. The plaint schedule property consists of 13 items. Plaintiff-first respondent is the daughter of late Purushan. The defendants in the suit are descendants of late Purushan. Admittedly, both parties have right in the plaint schedule property as descendants of late Purushan. Plaintiff-first respondent claimed 1/10th share in the plaint schedule property as descendant of late Purushan and sought for partition of the SA 357/01 2 plaint schedule property. Defendant nos.23 and 25 filed separate written statement and supported the plaintiff. Defendant nos.7 and 8 filed joint written statement and based on Ext.B1, which according to them, is a family settlement raised various contentions. According to the contesting defendant nos.7 and 8, certain items of property in plaint schedule are not partible.
3. Issues were framed by trial Court. Evidence was adduced. Plaintiff examined herself as PW1 but, did not produce any document. On the side of defendants DW1 to DW3 were examined and Ext.B1 to Ext.B6 were marked. On an analysis of evidence, trial court found that plaint schedule properties are available for partition and plaintiff is entitled to 1/10th share. A preliminary decree was passed in favour of plaintiff to divide the property into 10 equal shares and allot 1/10th share to plaintiff. Different shares were allotted to different defendants.
4. Defendant nos.7 and 8 filed an appeal before the District court. Appellate court confirmed the preliminary decree and dismissed the appeal and hence the second appeal. The following substantial questions of law are involved in this appeal SA 357/01 3 and which is formulated as hereunder :-
1. In a suit for partition, can the court grant a decree, in the absence of proof of title or right of plaintiff in the property which is sought to be partitioned?
2. If the defendants do not deny the alleged title or right of plaintiff over the property which is sought to be partitioned, can the court grant a decree of partition, based on the principle that an admitted fact need not be proved, without insisting for proof of title or right of the plaintiff over such property ?
5. Heard both sides. Perused the records. Though several questions are stated in the appeal memo, learned counsel for appellant confined her argument only to questions formulated as above. Learned counsel for appellant argued that property admittedly belonged to deceased Purushan and on his death, it devolved upon his legal heirs, but to prove alleged right over the property in question, plaintiff has not produced any document. No document is produced by plaintiff to prove her case and to get a decree for partition. The courts below have over looked this fact and granted a decree in favour of plaintiff, which is unsustainable. SA 357/01 4
6. Learned counsel for plaintiff-respondent conceded that no documents are produced by plaintiff before the trial court or appellate court to prove title or right which she is having or her father late Sri.Purushan is having in the property. But, in this appeal certain documents are produced by plaintiff-respondent, with a petition to receive the same. It is not opposed. On going through the petitions and the affidavit, I am satisfied that those documents are produced by plaintiff to support the claim made by her in the suit and there is no reason to refuse reception of those documents in appeal.
7. Any way, court below has committed an illegality in passing decree and confirming the same, without even confirming whether Sri.Purushan had any title over the plaint schedule property. If a person seeks a decree for partition of immovable property, he is bound to prove whether he has right over the property. A mere assertion of title of plaintiff's predecessor may not be sufficient to pass a decree. Even non-denial of alleged title or even an admission of such title by defendents may not be sufficient to pass a decree for partition. Even though the SA 357/01 5 averments of plaintiff relating to her alleged right in the property through the deceased father is not denied by defendants in the written statement, a decree for partition ought not to have been granted in favour of plaintiff without insisting for production of evidence to establish the right or title of plaintiff or her predecessor in interest over the plaint schedule property.
8. Order VIII Rue 5 provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in pleading of the defendant, shall be taken to be admitted, except as against a person under disability. Therefore, in the absence of specific denial in the written statement, fact including title may be taken to be admitted by virtue of Order VIII Rule 5. Under the said provision, there is a deemed admission in the absence of non-denial of a specific fact averred in the plaint.
9. However, the proviso to Order VIII Rule 5 lays down that the court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. It is clear that in cases in which court finds it necessary that a fact must be SA 357/01 6 proved, irrespective of the admission made by the parties, Court can require the party to prove the relevant fact. In the same manner, proviso to section 58 of Evidence Act also lays down in the that court may in its discretion require the facts admitted to be proved otherwise than by such admissions, even though as per Section 58 of Evidence Act admitted facts need not be proved under certain circumstances.
10. In a case relating to title or right over immovable property, it is not safe for the court to proceed merely on deemed admissions or admissions, without insisting for proof of such title or right over the immovable property by adducing evidence. The title or right of a person over immovable property will ordinarily be borne out by documents. Of course, there may also be cases in which even in the absence of title deed or other document, a person may establish title or right (oral lease etc.) which he has acquired. Still, in cases relating to any right or title claimed by a person on immovable property, court has to necessarily require such person to prove his right, as per law by adducing oral and documentary evidence, if any, to prove such right or title. SA 357/01 7
11. It may not, however, be proper for the court to proceed merely on admissions or deemed admissions by rule of pleading or by virtue of section 58 of Evidence Act to hold that a person has right or title over property especially to grant a decree for partition. This is for he main reason that in the absence of insisting for proof of title it is easy to obtain a decree from court in a collusive suit. It must be borne in mind that as per the proviso to both section 58 of Evidence Act and Order VIII Rule 5, court can require that admitted facts be proved otherwise than by such admissions. So, a partition suit is an appropriate proceeding in which the court can exercise the discretion under the said proviso and insist for proof of title or other right of the plaintiff, if any, over the property which is sought to be partitioned, otherwise than on admission.
12. In this case, Plaintiff has only pleaded that plaint schedule property belonged to late Purushan and he was in separate possession of the property during life time. Nature of acquisition of right is not stated in the plaint. According to contesting defendants, late Purushan had some self acquired SA 357/01 8 properties and also some ancestral properties in his possession. It appears that the title and right of late Purushan over property are born by documents. But such documents are not produced by plaintiff-respondent.
13. In a case in which title or right can be established by documents, the party who seeks to establish the right has to produce those documents, going by best evidence rule. If the party is not able to produce the same, it has to be explained why the documents are not produced. At any rate, on the facts of this case, in the absence of production of right or title over the immovable property, decree of partition ought not to have granted in respect of immovable property.
14. Though plaintiff is claiming right under her father who expired as early as in 1962, she has not produced any document to prove title or right of her deceased father over plaint schedule property. She has also not adduced any oral evidence. The defendants produced Ext.B1 which is stated to be a "family settlement deed" (learned counsel for plaintiff has objection to reference to this document as "family settlement", since the SA 357/01 9 document is titled as 'settlement deed' alone and also for other reasons) by which parties to the suit have made certain arrangements in respect of property. But the basic documents are not before the court.
15. On hearing both sides, I am satisfied that this is a fit case where plaintiff ought to have been required by the court to prove her title and right which she claims over the suit property. Since the plaintiff has produced various documents in this second appeal and since appellants have not opposed receipt of the same, on the facts and circumstances of the case, I find it essential to receive the same particularly to avoid multiplicity of proceedings and to put a quietus to the litigation.
16. Learned counsel for appellant submitted that there is some ambiguity in the documents produced and that the description in the documents and the plaint do not tally as per certain documents. However, she submitted that she has no objection in remanding the case for a fresh disposal in accordance with law. On hearing both sides I am satisfied that this is a case in which decree and judgment were passed in a suit for partition, SA 357/01 10 in the absence of any proof of title or right of the plaintiff over plaint schedule property. The documents produced by the plaintiff-respondent in this appeal are received and the suit requires reconsideration and disposal in accordance with law. The decree and judgment are therefore to be set aside and the case be remanded. In the result, the following order is passed:
1. The decree and judgment challenged in this appeal are set aside.
2. The suit is remanded to trial court for fresh consideration and disposal in accordance with law, as indicated in this judgment.
3. The trial court is directed to give opportunity to both sides to adduce such evidence, as may be necessary as the court deems fit and proper to resolve the issue involved in this case, in accordance with law.
4. The documents received in this appeal as per order in I.A.2512/2011 and I.A. 2616/2011 shall also be sent to the trial court for fresh disposal of the suit.
5. Since the suit is filed as early as in 1988, the trial court is directed to dispose of the suit as expeditiously as possible and not later than four months from the date of receipt of copy of this judgment and records.
6. The parties shall appear before the trial court on receipt of notice to the respective counsel on both sides.
This appeal is allowed.
Sd/-
K. HEMA, JUDGE.