JAMUNA PRASAD KUSHWAHA Vs. BHAGWATI BAI

JUDGEMENT

(1.) Thi s appeal has been preferred by the defendant. This Court vide order dated 1.4.1998 admitted the appeal on the following substantial questions of law:

(2.) The facts, giving rise to filing of the appeal briefly stated, are that the original plaintifffiled the suit seeking the relief of declaration and permanent injunction on the ground that the suit lands are ancestral lands of the original plaintiff which was recorded in the revenue records in the name of the father of the plaintiff, namely, Ramratan. After the death of Ramratan, the suit lands devolved on his sons, namely, the original plaintiff and the defendant No. 1 who got share each in the suit property and they were in separate cultivating possession. However, the defendant No. 1 in collusion with the revenue authorities, got his name mutated in the revenue record in respect of 2.15 acres. The defendant No. 1 filed the written statement in which interal iait was pleaded that the partition had taken place on 17.11.1979 (Exhi bi t D- 6) i n whi ch the defendant No. 1 was all otted the land admeasuri ng 2. 50 acres. It was further submitted that the plaintiff cannot be permitted to reopen the partition which had taken place way back in the year 1979.

(3.) The trial Court vide judgment and decree dated 25.9.1995 interalia held that the plaintiff has not been able to prove that the suit lands are ancestral lands. It was also found by the trial Court that the plaintiff is entitled to 1/2 share. Accordingly, the suit of the plaintiff was dismissed. Being aggrieved by the aforesaid decree, the plaintiff preferred an appeal. The appell ate Court vide judgment and decree dated 16.10.1996 on the basis of the statements of Ramesh (plaintiff witness No.1), Jamna Prasad (defendant witness No. 1) and Jugal Ki shore (plaintiff witness No. 3) held that the parties are in separate cultivating possession of the lands. It was further held that since Hari ram died intestate property held by him devolved as per Section 8 of the Hindu Succession Act, 1956. Accordingly, the plaintiff would be entitled to 1/3rd share in the suit land. The appellate Court granted the decree of declaration that the plaintiff is entitled to 1/3rd share in the suit land. However, the decree for possessi on was refused on the ground that the plaintiff being a coowner cannot seek decree of possessi on agai nst the co-owners.