LAL SURAJ PRASAD Vs. RAM CHARITAR SINGH

JUDGEMENT

(1.) This is an appeal by defendant 4 against an order of the District Judge of Motihari, reversing a decision of the Subordinate Judge of the same place.

(2.) The suit was brought by the plaintiff-respondent for partition of 21 bighas purchased by him on 10th October 1941, from defendants 6 and 7 out of their half share of a tenancy of 61 bighas 7 kathas in village Jagdishpur, taken in settlement from the Turkaulia Factory on 13th February 1922, by their father Kripal Narain Singh and certain other persons. According to the plaintiff, the settlees were (1) Kripal Narain, (2) defendants 2 and 3, who are brothers (3) Chaturbbuj Sahay deceased, father of defendants 5 and (4) Jadulal deceased, father of defendant 1, whereas defendant 4 denies that Chaturbhuj and Jadulal had any interest in the property: The Courts below did not find it necessary to investigate this point, as they were merely concerned with the share of Kripal Narain and the parties were in agreement that his share was one-half.

(3.) In the year 1929 the tenancy was sold in execution of a certificate for arrears of rent filed by the Battiah Estate, to whom the landlord's interest had by then passed, and was purchased by defendant 4, the brother-in-law of defendant 3. The case of the plaintiff is that this sale was brought about by the fraud of defendants 2 and 3, who were managing the property on behalf of all the co-sharers, and that they purchased it themselves in the farzi name of defendant 4, that the possession of defendants 2 and 3 remained unchanged and that, by reason of the fraud, the purchase enured to the benefit of all the co-sharers. It was further their case that, the certificate have been filed against defendant 2 alone, the sale had the effect of a money sale ; therefore, only the share of defendant 2 passed, and the share of Kripal Narain remained unaffected.