Pramod Kumar Srivastava, J.@mdash1. The original suit No. 256/1962, Bhaggal Kunwar and another v. Mahadev Kunwar and others, was filed for the relief of recovery of possession. This suit was decreed by the judgment dated 26.8.1964 passed by 1st Additional Munsif, Jaunpur. Against this judgment the Civil Appeal No. 271/1964, Mahadev v. Bhaggal was preferred which was partly allowed by the judgment dated 27.2.1981 of 3rd Additional District Judge, Jaunpur. The appellate Court had decreed the suit for possession over land and construction situated in map of Amin report dated 20.9.1962 (paper No. 942) marked by letters A, B, C, D, E, F by red inks. The appeal in respect of remaining construction and land was dismissed and Amin report was formed part of the decree. Against the judgment dated 27.2.1981, defendants of original suit had preferred present second appeal. It has been admitted fact between the parties that Sukkhu had three sons namely, Thakur Deen, Mahavir and Mahadev (defendant No. 1). Thakur Deen had died issueless. Plaintiff No. 1 Bhaggal and plaintiff No. 2 Roop Narain are the sons of Mahavir. Defendants No. 2, 3 and 4 are sons of Mahadev (defendant No. 1). It is also admitted fact that by lease deed dated 6.8.1925, Mahavir had acquired some property from Mathura Prasad. Thereafter original suit No. 620/1925 was filed and decided in the Court of Munsif City, Jaunpur. Said suit was decided in favour of plaintiffs'' father Mahavir. The dispute between the parties was as to whether the property acquired by Mahavir from Mathura Prasad by lease-deed dated 6.8.1925 is joint family property or was property of exclusive ownership of Mahavir. Partition between the parties had also been the admitted fact, but in that regard the time of partition was not admitted between the parties. The existence of disputed construction over land acquired from Mathura Prasad is also admitted fact but this is disputed as to whether this construction was present at the time of lease-deed executed by Mathura Prasad or it was raised later on.
2. Plaintiffs of the original suit claimed that disputed property detailed in the plaint was obtained by their father Mahavir Prasad through its original owner Mathura Prasad, which related to plot No. 55. For this property litigation between Mathura Prasad and Mahavir Prasad had ended in favour of Mahavir Prasad, who had been declared sole owner of this property. This property was not joint Hindu family property (JHF) but the property of exclusive ownership of Mahavir and after his death it devolved to plaintiffs. Defendants have taken possession of some portion of this property as detailed in plaint. Therefore the plaintiffs have filed suit for recovery of possession.
3. Only defendant No. 1 Mahadev had contested the suit. He had admitted the pedigree of the parties and also admitted that after death of Sukkhu, his sons had partitioned the property and started living separately; but this partition took place about 30 years back, in which Thakur Deen was given western part of whole joint family property, eastern part was given to defendant Mahadev, and middle part had gone in share of Mahavir (father of plaintiffs). He is in possession of disputed property on the basis of partition and has planted trees over it. Thakur Deen had no concern with eastern portion of his share of property. Therefore any transfer deed by Thakur Deen is not binding on him.
4. The trial Court had framed issues, received oral and documentary evidences and thereafter 1st Additional Munsif, Jaunpur had passed judgment dated 26.8.1064, by which plaintiffs'' suit for possession was decreed and defendants were directed to handover possession of disputed constructed portion to plaintiffs.
5. Against this judgment of trial Court, defendants had preferred Civil Appeal No. 271/1964, Mahadev and others v. Bhaggal and others, which was heard and decided by judgment dated 27.2.1981 of the 3rd Additional District Judge, Jaunpur, who had partially allowed the appeal, and the plaintiffs'' suit for possession was decreed only for that portion of land and construction which was marked by letters A, B, C, D, E, F in Amin report dated 20.9.1962 (paper No. 942) by red ink, and suit for remaining portion of land was dismissed. It was also directed that said map of Amin report will form part of the decree. Aggrieved by this judgment of trial Court as well as first appellate Court, present second appeal has been preferred by the defendants of the original suit.
6. In memorandum of appeal, several substantial questions of law were framed on behalf of appellant side. Out of them, four questions were accepted for consideration in this second appeal by this Court at the time of admission of this appeal. These are as follows:
(1) Whether beyond the pleadings of the parties the Court below could carve out a third case?
(2) Whether the joint purchases of property in the name of parties could raise the presumption of jointness of the Hindu Family, if the same has been continuing from before.
(3) Whether in the joint family alone if the construction are raised by someone co-sharer then other co-sharers will get any share or not?
(4) Whether a party is bound by his own admissions made at an earlier stage?
7. In light of arguments advanced by learned counsel for the parties, original record of the case was perused and thereafter these questions are being answered.
8. At the time of hearing, no such argument was placed by any side as to how the trial Court or first appellate Court had carved out or established a third case that was different from pleadings of the parties. After considering facts and evidences, the trial Court had decreed the suit for the relief claimed in the plaint accepting in toto the plaint case. In lower appellate Court, pleadings of the parties and evidences were considered. The first appellate Court had also considered those evidences also which were not properly appreciated by the trial Court and accepted partly the plaint case and accepted some of the pleadings of the defendant-appellant. No third case was created or carved out by the lower Courts, which was beyond the pleadings of the parties. Therefore, first substantial question of law is decided in negative.
9. It is settled legal position that joint purchases of property by the two different persons or relatives cannot raise the presumption of jointness of Hindu Family. In every case the jointness of a Hindu Family or the factum of its separation or dissolution can be determined on the basis of evidences. Every case has different facts and circumstances. Every case has to be decided on its own merits and not on general presumption. There may be occasion that the jointness of a Joint Hindu Family (JHF) had come to an end, but some of its members after dissolution of JHF decide to purchase any property jointly. In that case, such purchase cannot be treated as proof of JHF only on the ground that purchasers were once members of JHF. In present matter the Mahavir and Mahadev had obtained lease dated 10.4.1931 (Ex.-40) from Vivekanand and other person, but it was not sole basis of acceptance of the factum of their jointness of family or dissolution of JHF. After the execution of lease deed dated 6.8.1925, several litigations were carried out in several Courts. In some cases, predecessor in interest or parties to this appeal namely, Mahavir and Mahadev were plaintiff or defendant. But the main point for consideration before the Court was whether those litigations were carried out by them as member of JHF or on the basis of their independent rights. For determining these facts the lower Court, especially the first appellate Court, had considered the pleadings as well as the statement of the parties. After execution of lease-deed dated 6.8.1925 by Mathura Prasad in favour of Mahavir, the Original Suit No. 620/1925 was filed by Mahavir, which was decreed. Exhibit-6 was the document to prove that it was Mahavir who was put in possession of whole of the undivided disputed property by the Court. Said suit was filed by Mahavir only and decree and Dakhalnama (Ex.-6) show that he was put in possession; but later on in another proceedings of Suit No. 186/1946 the Mahavir had given statement in Court by which he had admitted that land acquired by the aforesaid lease-deed dated 6.8.1925 was towards south of the Kotri and all defendants (Thakur Deen, Mahavir and Mahadev) were in its possession since then. In this statement given in the Court, Mahavir had admitted that this land was acquired through lease from Mathura Prasad jointly by all the defendants (Mahavir and his brothers). Thus, the first appellate Court had not decided the matter believing the fact of joint purchases of property as proof of jointness of Hindu Family. But the said Court had independently appreciated evidences and thereafter gave its finding. These facts proved that this averment is incorrect that the partition between the three sons of Sukkhu namely, Thakur Deen, Mahavir and Mahadev happened in year 1920. First appellate Court had rightly held in its judgment that the admission of Mahavir is the strongest piece of evidence against the plaintiffs on this point and goes to establish that the land acquired from Mathura Prasad was the joint acquisition of the three sons of Sukkhu, although it was only in the name of one son Mahavir. On the basis of this finding the first appellate Court had reached to the conclusion that Mahavir had acquired the land in dispute from Mathura Prasad jointly for himself and for his two brothers. Thus it belonged to JHF. Second and fourth substantial questions of law are answered accordingly against appellants, because after such unequivocal admission, the person making it is legally bound by it, and is stopped to deny such admission.
10. It has been admitted fact between the parties that constructions in dispute has been partly on the land acquired from Mathura Prasad and partly over another land of plot No. 55. The case of defendant-appellants was that this land was allotted to their father Mahadev in the partition and then constructions were made by the defendants and their father after partition. Plaint case and these pleadings of defendants in light of evidences were considered by the lower Courts, which have given specific finding that after the partition Mahadev and thereafter his sons (defendants) had raised construction over some portion of land and thereafter by long and uninterrupted hostile user as owner, they have perfected their title over it. This part of constructed disputed property was that for which the first appellate Court had allowed the appeal partially. There has been specific conclusion of first appellate Court on the basis of appreciation of evidences and acceptable finding that the portion of disputed property, for which appeal was partially allowed, was constructed by defendants and those constructions were raised after the partition between the parties. Therefore, the finding of first appellate Court in that regard appears acceptable. The third substantial question of law is answered accordingly.
11. The real dispute between the parties in this case related to facts as to what portion was of the ownership of plaintiffs and what property come in ownership of defendants or their predecessor in interest. In spite of all arguments, these questions relate to facts only and not to law. Although some substantial questions of law were framed in memorandum of appeal and a few of them were accepted for consideration at the time of admission of this second appeal, but in fact above mentioned four substantial questions were in fact not substantial questions of law affecting rights of the parties of this case. Above mentioned four questions were in fact more argumentative averment than the questions of law affecting the rights of the parties.
12. In this matter, first appellate Court had decreed original suit of plaintiffs for whole of the property, treating the same property to be acquired from Mathura Prasad by lease deed dated 6.8.1925. Trial Court had accepted the said property to be exclusively acquired by Mahavir Prasad on the ground that Mathura Prasad has executed lease-deed in favour of Mahavir only, and thereafter Mahavir Prasad had independently instituted Original Suit No. 620/1925 against Mathura Prasad, which was decreed by the Court, and it was Mahavir Prasad who was put in possession of said property by the order of the Court and Dakhalnama (Ex.-6). But the trial Court had ignored the fact that defendants were not party to said proceedings and there was in fact no actual proof of partition between the sons of Sukkhu, and that during evidence in proceedings of Original Suit No. 186/1946, the Mahavir Prasad had made unambiguous admission that his family had not undergone partition and the land was acquired from Mathura Prasad for his joint family. So far the property for which first appellate Court had recognized the rights of plaintiff-respondents is the same for which trial Court had also given same findings. Thus, for such disputed property being that of JHF, there had been concurrent and acceptable finding of fact of the trial Court as well as the first appellate Court. Such concurrent and acceptable findings of fact cannot be interfered through exercise of powers of second appeal under section 100 CPC. The finding of first appellate Court regarding other property, for which first appeal was partly allowed, is also based on proper appreciation of evidences and acceptable finding of fact which should not and cannot be interfered in this appeal by re-appreciation of evidences relating to facts. For the reasons discussed above, and in the light of answers given to substantial questions of law, this Second Appeal is hereby dismissed.
