GIRIJA NANDAN SINGH Vs. GIRDHARI SINGH

JUDGEMENT

(1.) This appeal has been presented by the plaintiffs in a suit for partition in which the plaintiffs claimed partition of certain raiyati lands comprised in Khatas Nos. 109, 177 and 178 in village Jamri, pargana Pahra, District Gaya.

(2.) The facts giving rise to this appeal may be indicated as follows : One Jiyan Singh had five sons. The plaintiffs are sons of Ambica Singh, one of the sons of the said Jiyan Singh, whereas defendant 1, Girdhari, is another son of Jiyan, and defendants 2 and 3 are the sons of defendant 1. Defendants 4 to 11 are the descendants of the other three sons of Jiyan. It is the admitted case of both parties that the other sons of Jiyan became separate during the lifetime of their father, but Ambica, the plaintiffs' father, and defendant l continued to be members of the joint family governed by the Mitakshara school of Hindu law. The plaintiffs' case is that subsequently the plaintiffs' father, Ambica, also became separate from the defendants but the disputed lands continued to be jointly in their possession, and, consequently, they were entitled to a partition of those lands. The plaintiffs further stated that these lands were the exclusive property of the plaintiffs and defendants 1 to 3 with which defendants 4 to 11, the descendants of the other sons of Jiyan, had no connection whatsoever. It may be stated here that Khatas Nos. 109 and 177 have very small areas but Khata No. 178 comprises the largest area and consists of several plots.

(3.) Defendant 1 who filed a separate written statement denied that the lands belonged to him and Ambica jointly. According to him, the lands were partitioned between him and the father of the plaintiffs in 1325F., shortly after the survey. He further stated that his father Jiyan who remained joint with him and his brother Ambica died, and on his death defendants 4 to 11 also contributed to the expenses of his sradh, and in consideration thereof both Ambica and himself agreed to give to them Plots Nos. 1407, 1438, 1600 and 1646 of Khata No. 178. These plots, therefore, according to him, belong to defendants 4 to 11 with which neither defendants 1 to 3 nor the plaintiffs have any concern. Defendants 4 to 11 filed a separate written statement in which they claimed that the lands of the four Khatas jointly belonged to all the parties, and that they were wrongly recorded in the survey only in the names of Ambica and Girdhari. They claimed that the Khatas were privately partitioned amongst the parties in the year 1330F., and as a result of this partition they got the lands of Khatas Nos. 178 and 109 as described in their Written statement. Their written statement shows that they claimed plots Nos. 1438, 1646 and 1407 appertaining to Khata No. 178 as a result of this partition along with two other plots which did not include plot No. 1600. At the trial, however, it appears, defendants 4 to 11 gave up their case in the written statement and accepted the case of defendant 1 to the effect that the lands of the three Khatas in dispute belonged actually to the plaintiffs and defendants l to 3 but defendants 4 to 11 were subsequently allotted the four plots of Khata No. 178 as stated in the written statement of defendant 1. They further accepted the case of defendant 1 that the lands of the disputed Khatas had been already partitioned between the plaintiffs and defendants 1 to 3.