DEO CHAND Vs. SHIV RAM

JUDGEMENT

(1.) -This is an appeal from the judgment of a learned single Judge of the High court of Madhya Pradesh at Jabalpur reversing the decisions of the two courts below. The facts of the case are as follows :

(2.) To understand the facts we append first the genealogy of the parties to this suit. It will appear from the genealogy that the common ancestor of the parties (excluding the assignees) was one Radhakrishna Bhatt who died in the year 1920. This Radhakrishna Bhatt had five sons, Dattatrayarao, Sadasheorao, madhorao, Laxmanrao and Raghunathrao. Dattatrayarao died in the year 1946 ; he was predeceased by his two brothers, Madhorao who died in 1922 and Raghunathrao who died on 5/12/1945. One brother, Laxmanrao was said to be untraceable for 30 years and was therefore presumed to be dead. The suit from which this appeal arises was filed by the four sons of Raghunathrao and his widow Manorama Bai on 9/08/1956. During the pendency of the suit, Sadasheorao also died on 13/04/1957. The suit was directed against the daughter Indubai and son Govindrao of Sadasheorao. Both sides appeared to have made assignments of the suit properties by sale in favour of strangers. Defendants 3 and 4 who are the appellants here are the transferees from Sadasheorao and the other transferees from the heirs of raghunathrao were not joined in the suit either as plaintiffs or as defendants.

(3.) The plaintiffs claimed possession from the defendants of certain lands which they described in Schedule A to the plaint. Their case was that in the year 1939 negotiations for an oral partition commenced which were finalised in May, 1942 and the final partition was orally completed. The suit lands fell to the share of Raghunathrao and the plaintiffs were dispossessed by the defendants and hence the suit. According to the plaintiffs immediately after the partition, certain lists were executed by the parties betokening the share of the lands and houses which had fallen to their respective shares and that showed how the partition had proceeded. According to the defendants the partition took place in quite a different way. They pleaded that two of the lists which were signed by Govindrao (one of the answering defendants) were not authorised by Sadasheorao the father who was then alive and there- fore they are of no consequence. They also pleaded that these documentswere obtained by misrepresentation by Raghunathrao after the alleged date of partition. The exact manner of the partition as alleged by the defendants was that two of the branches namely those of Dattatrayarao and Madhorao went out after obtaining partition of their shares but the branch of Sadasheorao continued joint. It is not clearly pleaded as to how this partition was effected, whether by registered deed or through panchas or orally. The question therefore boils down only to one namely whether the partition had in fact taken place in May 1942 orally as alleged by the plaintiffs or that it took place in some other way as alleged by the defendants.