SIDHESHWAR MUKHERJEE Vs. BHUBAESHWAR PRASAD NARAIN SINGH

JUDGEMENT

(1.) Civil Appeal No. 53 of 1951. This appeal is on behalf of the plaintiff and is directed against a judgment and decree of a Division Bench of the Patna High Court, dated 8-9-1948, modifying those of the Additional Subordinate Judge, Moihari, passed in Partition Suit No.108/6 of 1943/46. There were two Money Suits between the same parties which, were tried along with the suit for partition and both of them were decreed by the trial judge, but dismissed by the High Court on appeal. Civil Appeals Nos. 54 and 55 of this court arise out of these appeals and we will deal with them separately.

(2.) So far as the main appeal is concerned, the material facts are uncontroverted and the dispute centres round one short point, which relates to the extent of share in the disputed properties to which the plaintiff can be said to have acquired a legal title. The plaintiff averred that he was entitled to a 4 annas' share in the schedule lands and this claim was allowed by the trial judge. The High Court held, on the other hand that the plaintiff's title extended only to 1 anna 4 pies' share in the disputed properties, and with regard to this share alone he could claim partition. It is the propriety of this decision that has been challenged before us in this appeal.

(3.) To appreciate the contentions that have been raised by the parties before us, it may be convenient to narrate a few material facts. The properties in suit, which are comprised in Tauzi No. 703 of the Champaran Collectorate, belonged admittedly to the defendants first party and their ancestors. Defendant No. 1 Bhubneshwar Prasad, who is the main defendant in the present litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note some time before 1932.