KRISHNA KANT VERMA Vs. MAHESHWAR PRASAD

JUDGEMENT

(1.) This first appeal has been filed by the plaintiff -appellant against the judgment and decree dated 18.04.2007 passed by Sri Om Prakash, the learned Sub Judge Ist, Khagaria in Title Suit No. 99 of 2000 dismissing the plaintiff's suit for partition.

(2.) The plaintiff -appellant filed the aforesaid partition suit to the extent of the share of the plaintiff alleging that Ambika Sahai, who was a teacher in P.W. High School, from his earning, purchased the suit land and constructed a house thereon. The suit house is only residential house of the family. On his death the property devolved upon the sons and daughters equally. He had three sons namely late Dineshwar Prasad, Maheshwar Prasad and Lala Umeshwar Prasad and three daughters namely Vimla Devi, Mohini Devi and Kishori Devi. The plaintiff is the son of late Dineshwar Prasad. The other sons and daughters are defendants in the suit. The parties are in joint possession of the suit property and they have unity of title and possession. The plaintiff is experiencing difficulty and therefore, requested the defendants for partitioning the suit property amicably but the defendant No.1 refused to partition. Hence the suit for partition is filed.

(3.) The defendant No.1 appeared and filed a contesting written statement. Besides taking various legal pleas the defendants contended that late Ambika Sahai never purchased the suit land. He had no ancestral land or other property to maintain the family. All the properties were sold by his father at Bhagalpur to maintain the family and late Ambika Sahai came to Khagaria in 1953 and started teaching job. He was teacher of P.W. Primary School at a very low monthly pay. He had no other source of income except his salary as teacher. He retired in 1958 -59 and at that time his monthly salary was Rs.25/ -. He married his daughter Vimla in 1939 borrowing loan from different persons. The eldest son i.e. Dineshwar Prasad died in 1946 when the plaintiff was aged about three years. The plaintiff's mother also died in 1948. The defendant came in service in the year 1947 and retired in 1984 from the post of Junior Engineer, Waterways Department. The defendant No.1 was helping his father in maintaining his family and also maintaining the plaintiff and provided him education and all facilities. The defendant No.1 also got the plaintiff married.