DINANATH YADAV Vs. KUSUM DEVI

JUDGEMENT

(1.) The present appeal has been filed against the judgment and order of the Subordinate Judge II, Danapur in Title Suit No. 128/71 on 9th of July, 1993 and 23rd July, 1993 respectively. The plaintiffs had brought a suit for partition of the properties separately described in two Schedules of the plaint. The first Schedule is said to be the ancestral property jointly belonging to both the parties who are the plaintiffs and the defendants having common ancestor. The second Schedule relates to the properties acquired by the Karta of the family in the names of different members of the family including the plaintiffs.

(2.) According to the plaintiffs, two brothers, namely, Tulsi Yadav and Gopi Yadav were the sons of one Kauri Yadav of village Sahar - Rampur in PS. Naubatpur of Patna District. Tulsi Yadav died leaving behind his son Faujdar Yadav and Gopi Yadav died leaving behind his son Ramlal Yadav. Faujdar Yadav also subsequently died leaving behind his sons, namely, plaintiff No. 1 Hawaldar Yadav, plaintiff No. 2 Radha Yadav and plaintiff No.3 Bhunasi Yadav, who also died subsequently in the year 1972 issueless. Hawaldar Yadav had three sons, namely, Dina Nath (Plaintiff No.4), Sidhnath (Plaintiff No. 5) and Ganga Sagar (Plaintiff No.6). Dina Nath had two sons, Satyadeo (Plaintiff No. 8) and Satyender (Plaintiff No. 9). On the other hand, Ramlal Yadav had three sons, Sukhlal (defendant No. 1), Sarjug (defendant No. 2) and Laldev (defendant No. 3). Sukhlal was issueless. Sarjug had two sons, namely, Dip Narayan (defendant No. 4) and Tandeo (defendant No. 5). Defendant No. 6 happens to be the son of Dip Narayan (defendant No. 4). Defendant No. 3 Laldev had four sons, namely, defendant No. 7 Prabhansh, defendant No. 8 Vijaya, defendant No. 9 Brajendar and defendant No.10 Nepali. Subsequently, one Baby son of Prabhansh has also been added as defendant No. 11. According to the plaintiffs, Tulsi Yadav and Gopi Yadav happened to be the full brothers and constituted joint Mitakashra Hindu family. It is clear that the plaintiffs are the descendants of Tulsi Yadav and defendants are the descendants of Gopi Yadav. All of them happened to be the members of a Joint Mitakashra family. Now, Sukhlal Yadav being the eldest brother and cousin brother in the family worked as Karta after the death of his father who was Karta during his life time. The family owned and possessed sufficient land which was canal-irrigated and all of them worked on the land to get the maximum out-turn and the family had made acquisition of some land from time to time. It is further stated that all the joint family income was retained by defendant No. 1 Sukhlal as Manager and Karta of the joint family. It is also further stated that all the papers of the joint family were in possession and custody of defendant No. 1 and he used to keep the entire income of the joint family and invest the money in business also in improper manner. Further, it is stated that the plaintiffs came to know that a sum of Rs. 30,000/- was accumulated by defendant No. 1 which he kept partly in Bank and rest in hand in cash. Since the entire property was acquired by the joint family, the plaintiffs have also got share in the said property. Thus, according to the plaintiffs, half share in Schedule properties belonged to the plaintiffs and the rest half belongs to the defendants. It is asserted that the defendants in collusion with one another went on usurping and misappropriating the entire savings and the properties in the suit. The defendants also did not take care of the plaintiffs and behaved in a manner in disregard of the plaintiffs' interest. The plaintiffs, therefore, felt annoyed and demanded partition of the property, but the defendants refused to partition in the property and ultimately when they refused to do so on 21.6.1971, the plaintiffs brought this suit for partition.

(3.) Two sets of written statements were filed; one on behalf of defendants Nos.3 and 7 and another on behalf of defendant Nos. 5,9 and 10. Inter alia, it was pleaded on behalf of the defendants that the plaintiffs have got no cause of action for the suit and the suit is barred by estoppel waiver and acquiescence and the suit is not maintainable. Further, it is stated that the suit is barred by limitation and adverse possession and the same is also undervalued and the Court-fee paid is insufficient. Further, it is stated that the suit is bad for nonjoinder of necessary parties and is barred by res judicata. Further, the defendants asserted that Tulsi Yadav and Gopi Yadav were the members of the joint Hindu Mitakshara no doubt, and they were jointly recorded in the survey record of rights in the original survey having equal share. Further, it is stated that the joint family of Tulsi Yadav and Gopi Yadav had about 6 acres of land and after the death of Tulsi Yadav his son Faujdar Yadav came in joint possession of the joint family property with Gopi Yadav. It is also further stated that the joint family of Gopi Yadav and his son Ramlal Yadav and nephew Faujdar Yadav acquired about 1.30 acres of land from the joint family property. Further, according to the defendants, Gopi Yadav died a few years after the death of Tulsi Yadav in jointness. After the death of Ramlal Yadav his sons Sukhlal Yadav, Sarjug Yadav and Laddu Yadav and cousin Faujdar Yadav all came in possession of joint family property by rule of survivorship. Therefore, after the death of Ramlal Yadav, there was a partition between three sons of Ramlal Yadav and their cousin, the plaintiffs. This partition was in estate, mess, residence and business more than 60 years ago, then Faujdar Yadav got his separate possession over the land of his share. It is further stated that since the partition took place 60 years ago, the parties have been coming in separate possession over their respective lands and one branch had nothing to do with the business of the other branch and acquired lands out of their funds separately. Further, it is stated that Sukhlal Yadav had his good earning out of his service and he acquired several acres of land. Sarjug Yadav was also a Minib in a grain Gola at Arrah and he had also acquired several acres of land out of his own earning. Further, it is stated that Laddu Yadav also purchased 4 decimals of land in Plot No. 1203 out of his own fund and thus, the plaintiffs have no concerned with the land acquired by the three brothers and their sons in the branch of Ramlal Yadav. Further, it is stated that the said Sukhlal Yadav (defendant No. 1) was issueless and he gifted his share of property about 6.24 1/2 acres of land to his brother Laddu Yadav by a registered deed of gift on 22-8-1971 and Laddu Yadav became owner of the said property and came in possession after the death of Sukhlal Yadav by the rule of survivorship and also as the donee of Sukhlal Yadav. It is further stated that there was a joint family property of the plaintiffs and out of the joint family income all the acquisitions were made separately with their own fund of the parties and the plaintiffs out of their income purchased some property separately and the properties acquired by the defendants were separate properties and the plaintiffs did not have any right, title or interest in the property. Therefore, it has been stated that there is no cause of action in the suit and the plaintiffs are not entitled to any relief claimed by them.