MOST RAMA DEVI Vs. SATYA NARAIN PD SWARNKAR

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.) THE defendant No.8 also filed a contesting written statement alleging that many properties have been transferred and the transferees have not been made party. He supported the case of the defendant No.1 that he is adopted son of Shambhu Ram and the properties of Shambhu Ram can not been partitioned. He also alleged that there had been separation between the two sons and Ram Vilash himself 18 years ago i.e. in or about 1961 and after separation the plaintiff sold many of the properties and, therefore, the said properties be allotted in the share of the defendant. This defendant is in possession of 5 bigha 2 kathha 8 dhur land and, therefore, if partition is affected he may be allotted the said lands. It appears that the transferees were added subsequently as defendant Nos. 9, 10 and