PARMESHWARI BARHI Vs. BINDESHWARI MAHTO

JUDGEMENT

(1.) THIS appeal is directed against the judgment of affirmance passed in M.T. Appeal No. 19 of 1990 by 6th Additional District Judge, Begusarai confirming the judgment and decree passed in Title Suit No. 26 of 1974 by Ist AddI. Munsif, Begusarai.

(2.) BRIEFLY stated the case of the plaintiffs, who are Respondents 1 and 2 herein, is that in village Sonma Tauzi No. 648, thana no. 129 lands under khata no. 315 detailed in schedule 'K ' of the plaint belonged to Ram Barhi duly recorded in the record of rights. Kokil Barhi and Sonu Barhi were sons of Ram Barhi. Kokil Barhi had two sons -Kallar Barhi and Budhu Barhi. Budhu died unmarried and Kokil died during the life time of his father. Kallar also died leaving behind his son Sitaram Barhi, who is defendant no. 4, (defendant 2nd set). Sonu Barhi, another son of Ram Barhi, died leaving behind his two sons -Madho (defendant no. 2) and Lalo (defendant no. 1) and Lalo died leaving behind four daughters -Lutni, Rampyari, Dhanwa and Tanak Devi. Madho has a son -Parmeshwari Barhi (defendant no. 3). Thus, Sitaram Barhi being the sole heir of Kokil has got eight Annas Share in the land detailed in Schedule 'K ' of the plaint and he and the sons of Sonu were coming in joint possession, although the property in suit were cultivated separately for convenience without any partition. Facing difficulty in cultivation, Sitaram Barhi (Defendant no. 4) executed a sale deed dated 28.5.1973 in favour of plaintiffs with respect to his share 1 Bigha 18 Katha 13 1/2 dhurs, who came in possession over the same. As there was no partition by metes and bounds and the plaintiffs were facing difficulty in joint cultivation, they asked the defendants for partition to which they refused. Hence, the suit for partition of schedule 'K ' land claiming eight Annas share in it.

(3.) THE trial court on consideration of the pleadings as well as evidence both oral and documentary adduced on behalf of the parties came to the conclusion that the sale deed executed by Sitaram Barhi (Defendant no. 4) in favour of the plaintiffs is genuine and valid. The plaintiffs have proved that Sitaram Barhi is the heir of KoKil Barhi, whereas Defendant nos. 2 & 3 have failed to prove that Kokil was the son of one Chingi Barhi of village Murraha. Hence, the plaintiffs are entitled to get eight annas share in the suit land of Schedule 'K ' i.e. 1 Bigha, 18 Kathas & 13 1/2 dhurs, and, thus, decreed the suit. The lower appellate court on appeal affirmed the findings of, the trial court disbelieving the case of the defendants 2 & 3.