BINOD KUMAR CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE plaintiffs have filed this First Appeal against the judgment and decree dated 30.06.2007 passed by Sri Vishwanath Prasad, Sub Judge I, Munger in title suit no.45 of 1992 dismissing the plaintiff- appellant's suit.

(2.) THE plaintiffs-appellants filed the aforesaid title suit no.45 of 1992 praying for declaration that the plaintiffs are entitled to get necessary correction in the record of Munger Khas Mahal and get their names entered in respect of 32.21 acres of land in Mauja Kutlupur and also for declaration that Khas Mahal Department are bound to make the aforesaid correction in relevant records. THE plaintiffs-appellants claimed the aforesaid relief alleging that Bhikhdhari Choudhary died leaving behind two sons namely Hirday Narayan Choudhary and Ayodhya Prasad Choudhary. Hirday Narayan Choudhary had two sons namely Radha Krishna Choudhary and Krishna Choudhary. Radha Krishna Choudhary is the plaintiff who was "Karta" and manager of joint family. Ayodhya Prasad Choudhary died leaving behind five sons namely Shivnandan Choudhary, Brahmdeo Choudhary, Ramdeo Choudhary, Satya Narayan Choudhary and Panchanand Choudhary. When Hirday Narayan Choudhary was alive, he acquired landed properties for the benefit of joint family within the zamindari of Munger Khas Mahal along with his co- villager, Yugal Prasad Choudhary. THE said acquisition was made in the name of Shivnandan Choudhary and Yugal Prasad Choudhary. Both were representing their families and each family had 50% share.

(3.) THE learned counsel appearing on behalf of the appellants submitted that the plaintiffs have produced evidences of partition before the Settlement Officer and on being satisfied, the Settlement Officer ordered to record the names of the plaintiffs and also names of the co- sharers to the extent of 50% in the Khas Mahal record of right which is Exhibit-4 but it was never complied with and therefore, the plaintiffs were compelled to file the suit. THE learned counsel further submitted that since the appellants are not claiming fresh partition therefore, the other co-sharers are not necessary party. THE learned counsel further submitted that the learned Court below has wrongly dismissed the suit holding that the plaintiffs failed to prove partition although Exhibit-4 and Exhibit-3 were produced and marked Exhibit in the case but the learned Court below did not rely on these documents. THE learned counsel further submitted that notice under Section 80 C.P.C. was sent but the learned Court below has wrongly held that no notice was sent. On these grounds, the learned counsel submitted that the impugned judgment and decree are unsustainable in the eye of law.