TEKARAM Vs. AMOLABAI

JUDGEMENT

(1.) This is an appeal by the Defendants against whom a decree for possession of 57.58 acres of land was passed in favour of the Plaintiffs in a suit filed by them for (i) declaration that 129.53 acres of land was then joint family property in which they had a half share and (ii) that the aforesaid land was liable to be partitioned and for joint possession of certain lands transferred by the Defendant 1 to the Defendant 4.

(2.) THE relationship between the parties is not disputed and the admitted facts so far as they are relevant are as under. The common ancestor of the parties Sagram, was the protected Thekedar of village Belsari, in Pandaria Zamindari Tahsil Mungeli, District Bilaspur. He died sometime in the year 1900 leaving behind four sons; Nandram, Mukutram, Sukhram and Netram. The eldest son was recognised as the protected Thekedar after Sagram's death. Mukutram died in the year 1910 without any issue or widow and Sukhram died in the yeas 1911 leaving a son Jiwrakhan, whose sons are Defendants 1 and 2. Netram died in the year 1933 leaving behind three sons; Ramadhin, Dukhiram (Plaintiff No. 3) and Hariprasad (Plaintiff No. 4). However Ramadhin died in the year 1949 leaving behind his two sons Onkarprasad (Plaintiff No. 1) and Premprasad (Plaintiff No. 2) Jiwrakhan had died in the year 1946. On the death of Nandram without any issue; the protected Thekedari naturally devolved on Jiwrakhan, who was then eldest member in the next senior branch. He held 132.82 acres of sir land and 2.49 acres of khudkasht land as his homefarm. It appears that in or about 1922 -23 there was a family settlement between Jiwrakhan on the one hand and Netram on the other whereunder 57.58 acres of sir land was allowed to be cultivated by Netram separately. Netram continued to cultivate the sais land till his death in the year 1933. Thereafter his three sons came in possession of the said land and cultivated it till 1953 After Jiwrakhan's death his eldest son Tekram (Defendant No. 1) became the protected Thekedar of the village. Inconsequence of abolition of the proprietary rights under the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1950 (No. I of 1951) (hereinafter referred to as Act I of 1951) the sir and khudkashi lands comprised in the said village became the occupancy lands. Subsequently the Defendant 1 not only denied the right of the Plaintiff to continue 10 hold 57.58 acres of land in their possession but also threatened to dispossess them from the land and actually sold a part of the land to the Defendant 4. On the basis of these facts the Plaintiff's intiated the action claiming the relief's mentioned in the opening paragraph.

(3.) THE learned Judge of the lower Court after trial found as under: