SATYA NARAYAN PRASAD Vs. URMILA DEVI

JUDGEMENT

(1.) THE plaintiffs have filed this first appeal against the judgment and decree dated 25th July, 1985 passed by learned 4th Subordinate Judge, East Champaran at Motihari in Partition Suit No. 194 of 1978/ 39 of 1982 decreeing the plaintiffs' suit in part.

(2.) THE plaintiffs appellants filed the aforesaid partition suit claiming half share in the suit property alleging that one Parsuram Lal had two sons namely, Shambhu Ram and Shiv Prasad Ram. Shiv Prasad Ram died in jointness with his brother Shambhu Ram and his only son Vilash Ram, the plaintiff No.1. THE plaintiff No.1 Vilash Ram had four sons Niranjan Lal, Kashinath Prasad (defendant No.1), Bishwanath Prasad and Satyanarayan Prasad (plaintiff No.2). THE plaintiff No.3 to 5 are sons of plaintiff No.2 and likewise defendant Nos. 2 to 6 are sons of defendant No.1. Bishwanath Prasad died in 1979 leaving behind his widow Anandi who is defendant No.7 and a son Ashok Kumar who is defendant No.8. Shambhu Ram had no issue and, therefore, he adopted Niranjan Lal. He acquired the properties in the name of his adopted son Niranjan. About 40 years ago Shambhu Ram died in state of jointness with plaintiffs and defendants leaving behind his adopted son Niranjan Lal. After two years of his death Niranjan Lal died unmarried in state of jointness with the plaintiffs and defendants. THErefore, the properties of Shambhu Ram and his adopted son devolved on plaintiff No.1. Plaintiff No.1 also acquired several properties in the name of his sons and grand-son which are in joint possession of the parties. THE original plaintiff No.1 Vilash Ram became old and defendant No.1 started looking after the family business. Some of the joint family properties have been sold which are not included in the suit. Since 1976 the parties are living separately and have started separate business. THEir mess is also separate but the properties have not been partitioned by metes and bounds. THEre is unity of title and possession between the parties with regard to schedule 2 properties which have been purchased out of the income from the joint family.

(3.) IT appears that during the pendency of the suit the original plaintiff No.1 Vilash Ram died. After trial the learned court below recorded finding that there had already been partition between Shambhu Ram and Shiv Prasad Ram. Niranjan Lal did not die as alleged by the plaintiff rather the alias name of defendant No.1 Kashi Nath is Niranjan Lal. The properties mentioned in the written statement are the property of branch of Shambhu Ram and the said property cannot be partitioned. The defendant No.1 is not claiming any share in the property of Vilash Ram. The learned court below also found that there had been no partition between the two sons of Vilash Ram i.e. Vishwanath and Satya Narayan and, therefore, decreed the plaintiffs' suit to the extent of half share on the property of the deceased Vilash Ram.