MUKTESHWAR RAI Vs. RAMKEWAL RAI

JUDGEMENT

(1.) The appellants instituted a suit for partition in the court of the Subordinate Judge, Arrah, claiming one fourth share in the properties described in the two schedules given in the plaint. The genealogy described in the plaint shows one Naib Rai had three sons Jai Pargas Rai, Dilip Rai and Suraj Rai. Jai Pargas had two sons Sital Rai and Sukhpal Rai. Of them Sukhpal died issueless. Plaintiff No. 1 is the son of Sital and plaintiffs 2 and 3 are the sons of plaintiff No. 1. Dilip had two sons Kalapnath Rai and Baldeo Rai. Mt. Safeda Kuer, defendant No. 4, is the widow of Kalapnath. Kalapnath died near about 1922. Before him Baldeo Raj had died leaving behind Mt. Budha Kuer who also died in 1949. Suruj Rai had two sons Ram Sakal and Ram Kewal, defendant No. 1. Defendant No. 2 is the son of Ram Sakal deceased and defendant No. 3 is the son of defendant No. 1. According to the plaintiffs, the three branches of Jai Par-gas. Dilip and Suruj continued joint, and in that state, Raldeo and Kalapnath died. In 1931, plaintiff No. 1, through his mother guardian, instituted a suit in the court of the Subordinate Judge (Title Suit No. 23 of 1931) against the present defendants 1 to 3, Mt. Budha Kuer and Mt. Safeda Kuer who were respectively defendants 4 and 5. In that suit half share in the joint family was claimed by the plaintiffs. That suit was com-promised on the 17th March, 1932, and a petition of compromise was filed which formed a part of the decree passed in the suit. The plaintiffs averred that, by that compromise, plaintiffs' branch got one half share, while the defendants 1, 2 and 3 got the other half in the properties covered in that suit, but out of each of the two shares, 10 bighas of land were taken out and given to defendants Mt, Safeda Kuer and Mt. Budha Kuer along with some of the money due to the family on mortgages, handnotes and book debts. It was agreed thereunder that the properties allotted to the two widows would remain in their possession during their lifetime and they would have no right to alienate or encumber them in any way, and after their death the plaintiffs and defendants 1 to 3 will divide the properties between them in equal shares. Schedules Ka and Kha properties of the present plaint Were given to those two ladles. Mt. Budha Kuer died on 29-8-1949, and cm her death, the plaintiffs and defendants 1 to 3 came in possession of her half share in the suit properties, as the widows were in possession as tenants in common and the properties were given to them by way of maintenance. The plaintiffs claimed in this suit one-fourth share in the suit properties.

(2.) Two written statements wore filed, one on behalf of defendants 1 to 3 and the other by defendant No. 4, Mt. Sateda Kuer. Both of them were on the same line. They pleaded that there had already been a previous partition in the family near about 1914 and all the joint family properties, both moveable and immoveable, had been divided between the three branches of Jai Pargas Rai, Dilip Rai and Suraj Rai. Kalapnath and Baldeo, sons of Dilip Rai, were in separate possession over their 1/3 share of the property before their death. Baldeo died in a state of jointness with Kalapnath, and after his death, his widow, Mt. Budha Kuer, lived with Kalapnath. On Kalapnath's death, his widow Mt. Safeda Kuer, defendant No. 4, inherited his properties as a Hindu widow. It was denied that under the terms of the compromise decree passed in Title Suit No. 23 of 1931, the plaintiffs and defendants 1 to 3 were given one-half share each in the family properties, and out of their two shares 20 bighas were given to defendant No. 4 and Mt. Budha Kuer. They claimed in their defence that in that compromise one share was given to the plaintiff, another equal share was) given to defendants 1 to 3 and the third equal share was given to defendant No. 4, Mt. Safeda Kuer, in recognition of her antecedent claim. Unity of title and possession in respect of the suit properties, was emphatically denied.

(3.) On these pleadings five issues were framed by the trial Court as follows :