BALDEO PRASAD YADAV Vs. KEDAR NATH YADAV

JUDGEMENT

(1.) The defendants have filed this First Appeal against the Judgment and Decree dated 13th August, 2004 passed by Sri Chandra Bhushan Kumar, the learned Subordinate Judge lllrd, Patna in Title Partition Suit No.328 of 2000/158 of 2002 decreeing the plaintiff-respondent suit for partition to the extent of 44.33 paise share in the suit property.

(2.) The plaintiff-respondent, Kedar Nath Yadav, filed aforesaid partition suit claiming partition of his 44.33 paise share in the suit premises alleging that the suit property is a triple storied pacca building standing on plot No.36F having an area of 425.80 square yards of Rajendra Nagar Road No.10 B Block No.Ill type 'F' police station Kadamkuan, Thana No.4, District Patna. According to the plaintiff, Bechu Yadav had only one son, Kheyali Prasad Yadav who has two sons and one daughter, namely, Kedar Nath Yadav, the plaintiff, Baldeo Prasad Yadav, the defendant No.1 and Tetri Devi, defendant No.3. The defendant No.2, Ajay Kumar is the son of defendant No.1. Bechu Yadav died in jointness. After his death, his only son Kheyali Prasad Yadav became the karta. The lands and house of Kheyali Prasad Yadav was acquired by Patna Improvement Truest and the aforesaid land which is suit property was given in lease to Kheyali Prasad Yadav through lease deed dated 11.08.1961 executed by the Chairman, Patna Improvement Trust. Kheyali Prasad Yadav constructed up to double storied building out of joint family fund and he died on 02.02.1972. After his death, the plaintiff and defendant No.1 made construction of 4 rooms in second floor out of the amount received from the tenants of the ground floor and the first floor. Out of 4 rooms of the second floor, two rooms are in occupation of the plaintiff and two rooms are in occupation of the defendant No.1. The defendant No.1 was collecting rent upto Rs. 15,000/- per month from the said joint house but he was not giving any account and thereby deprived the plaintiff from his due share in joint house. The plaintiffs demanded for amicable partition but he refused. Hence, the suit was filed for partition claiming 44.33 paise share.

(3.) The defendant No.1 and 2, i.e., father and sons appeared and filed a contesting written statement. The defendant No.3, i.e., daughter of Kheyali Prasad Yadav neither appeared nor filed written statement nor contested the suit. It may be mentioned here that during the pendency of this appeal, the said defendant No.3 who is respondent No.2 in this appeal, namely, Tetri Devi died and application being I.A. No.626 of 2011 filed for substitution of her legal representatives which is pending for disposal. Heard the parties on this application also. Since the defendant No.3- respodnent No.2 neither filed written statement nor contested the suit, it is not necessary to substitute her legal representatives as it will delay the matter, therefore, the appellants are exempted from substituting her legal representatives and her name is expunged from cause title of memo of appeal under provision 22 Rule 4 sub-Rule 4 of the Code of Civil Procedure.