GOKARAN PRASAD SINGH Vs. CHHOTEY NARAYAN SINGH

JUDGEMENT

(1.) This appeal by deft. 1 arises out of a suit for partition. The pltls. who are the grandsons of one Nath Sahay Singh, allege that they own 7 dams & odd share in tauzi No. 2542 in village Kendua, which has been included in Register D in the share, recorded in the names of (1) deft, 1, (2) defts 2 to 5(a), & (3) defts. 21 to 23(a) & 31 to 34, & their prayer is that a separate takhta of their share be allotted to them after partition. They have also claimed Rs. 449/12 as compensation for the period antecedent to the suit & future mesne profits till possession is delivered to them of their takhta in case they are found to be out of possession.

(2.) The trial Ct. has decreed the claim in favour of the pltfs. against deft. 1 & defts. 2 to 5(a) with costs, but dismissed it against other defts. A preliminary decree for partition has accordingly been made.

(3.) The pltfs. grandfather, Nath Sahay, owned 7 dams 3 kauris 12 bauris & odd share in tauzi No. 2542 in mauza Kendua & he was in possession of his share as co-sharer malik till he gave his share in ijara on 5-1-1904, to two persons, Lal Mohammad & Mulliok Turab Ali. This ijara was redeemed in 1920. One Mahendra was also a co-sharer malik of this tauzi & his interest was 7 dams & odd. eqal to the share of Nath Sahay, & one Janki Prasad Singh also held 5 dams & odd share in this tauzi as a co-sharer malik. Thus the total interest of Nath Sahay, Mahendra & Janki was 1 anna & odd in this tauzi. There were other co-sharer landlords also, but we are not concerned with them in this suit. On 3-9-1906, the 1 anna & odd share, representing the total interest of these three persons, was sold for arrears of cese & auction purchased by one Jugeshwar Dayal, Mukhtar, at a certificate sale, & he got his name mutated in register D in respect of the share purchased by him. According to the trial Ct. he did not get possession over this property. & this finding has not been challenged before us. Subsequently, Jugeshwar sold 6 dams & odd share, which he described as the interest of Mahendra, & the entire 5 dams & odd share of Janki (total 11 dams & odd), to Gokaran Prasad Singh, who is deft. 1 in the present action. He also sold the remainder, describing it as the entire 7 dams & odd share of Nath Sahay & the remaining 1 dam & odd share of Mahendra, to one Ramsaran Singh, ancestor of defts. 2 to 5 (a). But Mahendra. notwithstanding the certificate sale, sold the entire 7 dams & odd interest to one Masoom Ali in 1909, who in his turn, sold this share to one Waris Ali, ancestor of defts. 31 to 34, & in 1913 Waris Ali sold one-fourth of the interests purchased by him from Masoom Ali to one Man-zur Ali, predecessor-in-interest of defts. 21 to 23(a).