SURESH PRASAD Vs. SARYUG PRASAD

JUDGEMENT

(1.) The Plaintiffs have filed this First Appeal against the judgment and decree dated 18.05.2005 passed by Sri Baleshwar Sharma, the learned Subordinate Judge III, Patna City in Title Partition Suit No. 223 of 2000 dismissing the Plaintiff-Appellant's suit for partition.

(2.) The Plaintiffs-Appellants filed the aforesaid partition suit claiming half share in the suit property alleging that Bhagwan Das Yadav was the father of Plaintiff No. 1 and Defendant No. 1. The other Plaintiffs are the sons of Plaintiff No. 1 and likewise, the other Defendants, first set are the sons of Defendant No. 1 and rest Defendants-Respondents are the purchasers. Bhagwan Das separated from his brother, Ram Brichha Yadav. Bhagwan Das was the karta of the family consisting of his sons and grandsons and he died in jointness with them in the year 1993. The mother of the Plaintiff No. 1 and Defendant No. 1 also died in the year 1998. The Plaintiffs and the Defendants are separate in their mess, residence and earning but since there was no partition by metes and bounds, they have got unity of title and possession over the ancestral joint family properties which are the subject matter of the suit. In jointness, Defendant No. 1 has transferred some part of the joint family property without any legal necessity. Therefore, the Plaintiffs demanded partition but the Defendant refused. Hence, the suit for partition was filed.

(3.) On being noticed, the Defendant-Respondent Nos. 1 to 4 filed contesting written statement. The minor Defendant No. 3 filed separate written statement through guardian ad litem. The Defendants besides taking various ornamental pleas mainly contended that there was a previous partition in the family during the lifetime of Bhagwan Das Yadav in the year 1991. According to that partition, the parties came in exclusive possession of their respective shares and they also transferred some of the lands allotted to them in the partition. Defendant No. 1 transferred 10 dhurs land out of his share in plot No. 142 and similarly his father Bhagwan Das Yadav also transferred 15 dhurs land out of plot No. 142 to Brahamdeo Narayan Singh who is Defendant No. 5. On the death of Bhagwan Das Yadav, the Plaintiff No. 1, Suresh Prasad created some trouble regarding the house property and, therefore, the parties jointly appointed Arbitrators for settlement of their dispute. The said Arbitrators resolved their dispute and a memorandum of partition was prepared on 30th July, 2000 which bears the signatures and L.T.I. of the Plaintiff No. 1 and Defendant No. 1 and also all the Arbitrators. The Arbitrators allotted the house situated at Varis Khan-Ka-Talab in favor of the Plaintiff exclusively and in lieu of the share of Defendant No. 1, the Defendant No. 1 was allotted 4 kathas land of plot No. 284 under khata No. 537 out of the Plaintiffs 9 katha share. In previous partition, the Plaintiff No. 1 and the Defendant No. 1 were given half and half share in plot No. 284 under khata No. 537 measuring 56 decimals. 56 decimal is equal to 18 katha. After memorandum of partition dated 30.07.2000(Exhibit-D), 40 decimals in the northern side was allotted in favor of Defendant No. 1 whereas 16 decimals in the southern side was allotted in favor of the Plaintiff. After that partition, the Defendant No. 1 invested Rs. 6 lacs and constructed house on plot No. 284.