RAM PD TAMOLI Vs. HARI PD KHETAN

JUDGEMENT

(1.) This appeal has been filed by the plaintiff-appellant against the judgment and decree dated 09.04.1982 by Additional Sub Judge II, Bhagalpur in T.S.No.40/73/12/82 dismissing the suit for partition and for declaration of the auction sales and delivery of possession of the suit property in the execution cases as fraudulent and paper transaction and not binding upon the plaintiff.

(2.) Filtering the unnecessary details, the plaintiff's case is that he is the grand son of Pago Tamoli who had two brothers Banarsi Tamoli and Chirkut Tamoli. The grand father of the plaintiff was separate from his brothers and had two sons namely Laxmi Tamoli and Ganesh Tamoli. The plaintiff is son of Laxmi Tamoli who has been impleaded as defendant no.11 and plaintiff's uncle Ganesh Tamoli has been impleaded as defendant no.12 in the suit. The plaintiff has further pleaded that the predecessor-in-interest of defendant no.1 and 2(defendant 1 st set) had obtained money decrees in three money suits and the suit properties were auction sold in execution of the said three money decrees. However, it is the case of the plaintiff that the money decree in the M.S.No.418/56, M.S.No.201/58 and M.S.No.202/58 and the sequential proceedings of auction sales and delivery of possession in the Execution Case No. 131/58, Execution Case No.180/59 and Execution Case No. 66/60 were all fraudulent and paper transactions and did not affect the interest of the plaintiff who was not a party in the said suit or proceedings, and the plaintiff or the defendant nos.11 and 12 were never dispossessed from the suit land. The plaintiff has claimed to be in possession over the suit land and has further claimed that after attaining majority on 10.05.1972, he is filing the present suit within three years of the attainment of majority. It has also been pleaded that defendant nos.11 and 12, father and uncle of the plaintiff are in collusion with the defendant 1 st set and are bent upon to grab the share of the plaintiff in the suit land and therefore the suit has been filed for partition and for declaration that the decree in the three money suits and the orders passed in the execution proceedings thereof are not binding upon the plaintiff.

(3.) The suit has been mainly contested by the defendant no.1 who has filed his written statement denying the status of the plaintiff as son of Laxmi Tamoli and asserting that the plaintiff has no concern with the family of the defendant nos. 11 and 12(defendant 5 th set). The defendant no.1 has further stated that three money suits were filed for realization of money borrowed by Laxmi Tamoli in the capacity of Karta of his family for the benefit of the family members and all the members of his family had benefited by the said loan. It has been further stated that the proceedings of the three money suits and the auction sales and delivery of possession over the auction sold properties had all been done in accordance with law and the same are binding upon all the family members of the Laxmi Tamoli. The defendant no.1 has claimed to have come in possession over the suit property after his purchase in the auction sales, through the process of the Court and has claimed to have been dealing with the same by transactions of sale and gift.