RAM NIHORA MAHTON Vs. RAMASHARAY MAHTON

JUDGEMENT

(1.) THE plaintiff has filed this First Appeal against the judgment and decree dated 26.03.1981 passed by Sri John Dhan, the learned Subordinate Judge 2nd, Patna in title suit no.41 of 1978 dismissing the plaintiffs suit for partition.

(2.) THE sole plaintiff-appellant filed the aforesaid title suit praying for partition of his half share with respect to Schedule-1 property and 1/5th share with respect to Schedule-2 property. In short, the plaintiffs case is that Gurusahay Mahton @ Raghunandan Mahton died before cadastral survey which took place in the year 1908-09 leaving behind his son, Dukhan Mahton and widow, Masomat Bigwa and a daughter, Sonphulwa. THE plaintiff is the son of Sonphulwa. THE wife of Dukhan Mahton, pre-deceased him and Dukhan Mahton died soon after cadastral survey leaving behind his mother, Masomat Bigwa and sister, Sonphulwa. After his death, Masomat Bigwa, Sonphulwa and the plaintiff came in possession of the properties of Gurusahay Mahton. After the death of Masomat Bigwa and Sonphulwa, the plaintiff became the heir of property of Dukhan Mahton. THE further case is that the defendants are the heirs of other four sons of Bal Kishun Mahton. He and the defendants are coming in joint possession of the suit property. THE suit Khata No.173 stands recorded in the name of Haritahal Mahton and Dukhan Mahton and therefore, plaintiff claimed 1/2 share in that Khata which is mentioned in Schedule-1. Khata No.95 is recorded in the name of Ramtahal Mahton, Haritahal Mahton, Gurusahay Mahton, all sons of Bal Kishun Mahton and Dukhan Mahton, son of Gurusahay Mahton and Masomat Bigwa and therefore, the plaintiff claimed 1/5th share in this property which is mentioned in Schedule-2. THE plaintiff demanded partition but the defendants refused. Hence, the plaintiff filed the suit for partition.

(3.) IN view of the above pleadings of the parties, the following 8 issues have been framed by the learned Court below: (i) Is the suit as framed maintainable? (ii) Has the plaintiff any cause of action for the suit? (iii) Is the suit barred by limitation, estoppel, waiver and acquiescence? (iv) Is the suit barred under Section 34 of the Specific Relief Act? (v) Is the suit under valued and the Court fee paid insufficient? (vi) Is there unity of title and possession between the plaintiff and the defendants in respect of the suit land? (vii) Is the plaintiff entitled to a decree for partition if so, to what extent? (viii) To what relief or reliefs if any, is the plaintiff entitled?