SHAMBHU PRASAD Vs. DEESON

JUDGEMENT

(1.) THIS is the defendant's Second Appeal under section 100 of the Code of Civil Procedure Code, against the judgment of reversal.

(2.) PLAINTIFF filed the suit for declaration of title as also partition. Civil Judge, Class II, Ambikapur, by judgment and decree dated 15.10.1980 passed in civil suit No. 170-A/1979, dismissed the suit. Aggrieved by the same, plaintiff preferred appeal and District Judge, Sarguja, by judgment and decree dated 30th January 1988 passed in civil appeal No. 40-A/86 allowed the appeal, decreed the plaintiff suit and held that plaintiff and defendants have shares in the suit property. Accordingly, lower appellate Court decreed the suit of the plaintiff for partition. Aggrieved by the same, defendants have preferred this appeal.

(3.) FACTS necessary for the decision of the aforesaid substantial question of law, as pleaded by the parties are that the plaintiff Fouti (since dead) had two daughters i.e., Smt. Deeson and Sumari, the present respondents. Ranga had two sons - Khekhra and Fauti. Suit was filed by Fauti and he died during the pendency of appeal and his heirs have been substituted in his place. Khekhra died prior to the institution of the suit and his successors in interest are the defendants. According to the plaintiff, agricultural land having an area of 15.70 acres is recorded in the name of Fauti, as also the defendants jointly. Plaintiff has filed the suit for partition of half share in the said land. According the plaintiff, suit property is self-acquired property of the original plaintiff Fauti and his brother Khekhra and the same was settled with them by erstwhile Sarguja State. According to the plaintiff, the family of both the brothers were joint in mess and were cultivating the land jointly also and after the death of Khekhra, his son and grand sons started cultivating the land jointly. It is the assertion of the plaintiff that defendants without knowledge of the plaintiff got the suit land partitioned by the revenue authorities in which he was given only 1.60 hectares of land out of total 5.13 hectares of land. According to plaintiff, he could know the order passed by the Revenue authorities in June 1979 and accordingly he has filed the suit for setting aside the said order as also for declaration of his half share in the property and for partition.