MAHA MAYA DEVI Vs. KUSHUM DEVI

JUDGEMENT

(1.) THIS second appeal has been filed seeking reversal of the judgment and decree passed by Sri Bhavesh Kumar Derhgawen, 2nd Additional District Judge, Monghyr in Title Appeal No. 20 of 1976 whereby he had confirmed the judgment and decree passed by Sri Ram Kishore Singh, Additional Sub -Judge, Jamui in Title Suit No. 12 -4 of 1965/76. The defendants first set of the title suit No. 12/4 of 1965/76 are the appellants here and they were the appellants before the first appellate Court also.

(2.) THE case of the plaintiff -respondents of the lower Court was that the lands of Khata No. 371 having an area of 12 acres 75 decimals and land of Khata No. 219 having an area of 1 acre 85 decimals was acquired by the joint family of the plaintiffs and some of the defendants. It was the further case of the main plaintiff -respondents. It was the further case of the main plaintiff -respondents that Debi Lal, Jibu Lal and Gajadhar Lal, were the three brothers who owned and possessed the joint family property and in the year 1317, (corresponding to 1910), three brothers separated in their family and property and the lands of Khata No. 371, as described in Schedule -I of the plaintiff, fell to the share of the plaintiff -respondents, including land of Khata No. 219. Gajadhar Lal was a shrewd person and he was in the employment of ex -landlord and so he got his name entered in the Laggit of the ex -landlord and got returns, etc. filed in his name, even though the suit land of Khata No. 371 had fallen to the share of plaintiffs ancestors. Later, this Gajadhar Lal executed a deed of gift in favour of his daughter and daughters son who were defendant Nos. 4 to 7 in the suit. This deed of gift was, however, paper transaction and so the plaintiffs ancestor remained in possession of the suit land. However, subsequently, the donees of the gift executed sale -deed in favour of the defendant Nos. 1. and 3 of the suit. On the death of defendant No. 1, his heirs were substituted who were defendant No. 1 to 1 (d). The suit was mainly contested by the defendant Nos. 1 to 1 (d) and defendant No. 3. The plaintiffs were dispossessed during the pendency of the suit on 3rd January, 1970, from the lands as described in Schedule -IV of the plaint. These lands were the parts of the lands described in Schedule -I of the plaint which had fallen to the share of plaintiffs on partition.

(3.) THE trial Court decreed the suit and the first appellate Court also confirmed the decree against which this second appeal has been preferred. In this second appeal, substantial questions of law formulated were to the effect whether the finding regarding partition arrived at by the Courts below was erroneous in law. The next question of law formulated was whether without any nucleus, the sale in the name of Gajadhar Lal could be held to be the property of the joint family. The third question of law was whether the joint family had purchased part of the suit land in the name of Gajadhar Lal.