JAGDISH TIWARY Vs. LALITA KUER

JUDGEMENT

(1.) This second appeal was filed by the sole original defendant appellant against the sole plaintiff respondent challenging judgments and decree of both the Courts below. During the pendency of this second appeal, the appellant as well as the respondent died and their respective heirs were substituted.

(2.) This second appeal arises out of Title Suit No. 11 of 1986 which was filed by the plaintiff respondent with respect to lands of several plots and khatas situated in vil-lages-Barisawan, Vimari, Mahapur and Devaichkundi under Sahpur Police Station within the district of Bhojpur detailed in Schedule-I of the plaint for the following reliefs:

(3.) The claim of plaintiff was that the common ancestor of both the parties was one Kritarath Tiwary who had five sons, namely Har Prasad, Har Sewak, Mukhlal, Akchhaya Lal and Jageshar, out of whom Jageshar died issueless and both the sons of Har Prasad, namely Saruha and Ramdas also died issueless. It is also claimed that the plaintiff was the son of Akchhaya Lal and defendant was the son of Harsewak, whereas Dhurendhar was the son of Mukhal. The further claim of plaintiff was that Dhurendhar and his brother also died issueless and hence the branch of Har Prasad, Jageshar and Mukhlal extinguished without any heir and the ancestral property which was coparcenery remained intact between the heirs of Harsewak and Akchhaya Lal only, namely plaintiff and defendant, out of whom defendant Ramdaras Tiwary, who remained in the village, was the Karta of the family, whereas the plaintiff mostily remained outside being in military service. It is also averred that due to quarrel between the lady members of the families of both parties they began to live separately about six years prior to the filing of the suit, but subsequently the plaintiff leant that the defendant had fraudulently prepared a deed of gift said to have been executed by Dhurendhar Tiwary in his favour with respect to the suit property, whereafter the plaintiff obtained a certified copy thereof and learnt that the deed of gift was illegal as the said Dhurendhar Tiwary was incapable of understanding anything and remained in long illness and was not competent to execute any such deed in respect of coparcenery properties.