LAKHAN GOPE Vs. DAHU GOPE

JUDGEMENT

(1.) THE contesting defendants have filed this First Appeal against the Judgment and Decree dated 28th April, 19777 passed by Sri Bhagwan Prasad Mungeshwar Sahoo, J. Singh, the learned 2nd Addl. Subordinate Judge, Biharsharif, Nalanda in title suit No.104 of 1969 / 19 of 1974 decreeing the plaintiff respondent suit for partition to the extent of half share.

(2.) THE plaintiff-respondents filed the aforesaid suit claiming partition of the suit properties described in Schedule II and III of the plaint alleging that Somer Gope had 3 sons, namely, Etwari Gope, Nemchand Gope and Bandhu Gope. 40-45 years ago, Etwari Gope separated from his brothers Nemchand Gope and Bandhu Gope. Thus two brothers, namely, Nemchand Gope and Bandhu Gope remained joint and their descendants are still joint. THE plaintiffs are the sons and grand sons of Nemchand Gope whereas the defendants are the descendants of Bandhu Gope. Lakhan Gope, the defendant No.1 is the karta of the family. THE ancestral properties and the purchased property of joint family is detailed in Schedule 2 whereas the animals and movables have been detailed in Schedule 3 properties. THE plaintiffs claimed unity of title and possession over the suit properties and filed the suit for 8 annas share.

(3.) THE learned senior counsel, Mr. Devendra Kumar Sinha appearing on behalf of the appellant submitted that some of the plaintiffs are 3 rd generation and some plaintiffs are 4th generation from the original founder Somar Gope and likewise the defendant No.2 is only 3rd generation whereas the defendant No.3 to 6 and 10 are 4 th generation and defendant No.8 and 9 are 5th generation from the original ancestor, Somar Gope. In such circumstances in the present case, the presumption is very weak. THE learned Court below has, therefore, wrongly, not considered this fact of the matter. According to the learned counsel, no doubt, the facts of the case that whether the two brothers, Nemchand Gope and Bandhu Gope remained joint as claimed by the parties or whether both of them also separated when Etwari Gope separated 40-45 years ago as claimed by the defendant is to be ascertained from the evidences available on record but the learned Court below did not consider the evidences oral as well as document produced by the parties in right perspective and has given a wrong finding that both brothers remained joint. THE defendant produced the sale deeds standing in the name of plaintiff exclusively, the sale deeds standing in the name of branch of Bandhu Gope or sale deeds standing in the name of branch of defendant No.1 exclusively right from 1935-65 to say that for long period, the parties were dealing the property separately and enjoying the same as their exclusive property and residing separately but cumulative effect thereof was not considered by the Court below. Although, there is no case made out by the plaintiff that there was sufficient joint nucleuous by the joint family out of which the properties could have been acquired but the learned Court below only on presumption held that there was joint family necleuous by which the properties are acquired in the name of