SAHJDEO DAS Vs. DEVI DAS @ DEONANDAM DAS

JUDGEMENT

(1.) HEARD the learned Senior Counsel Mr. Dhrub Narayan appearing on behalf of the appellant, learned counsel Mr. Pramod Kumar Sinha appearing on behalf of respondent No. 2 and the learned counsel Mr. Ashok Kumar appearing on behalf of respondent No. 1 under Order 41 Rule 11 of the Code of Civil Procedure. The plaintiff appellant has filed this second appeal against the judgment and decree dated 30.4.2011 passed by District Judge, Munger in M.T.A. No. 2 of 2010 dismissing the appeal and thereby confirming the judgment and decree of the trial court dated 21.11.2009 passed by Munsif -1st, Munger in Title Suit No. 48 of 2002 dismissing the plaintiff appellant simple suit for partition.

(2.) THE plaintiff filed the aforesaid suit for partition claiming half share in the suit property alleging that the suit plot measuring 3 kathas 8 dhurs was purchased by three brothers namely Dhana Das, Nandlal Das and Dilo Das in the year 1964. The plaintiff Sahdev Das and the defendant No. 1 Devi Das are two sons of Dilo Das. Dilo Das sold his 1/3rd share to Phoolwati Devi through registered sale deed in the year 1972, Subsequently, Phoolwati Devi again transferred the suit property in the year 1980 and since after purchase the plaintiff and the defendant No. 1 are continuing in possession of the suit property which is residential house. There was Panchayati regarding partition between the three brothers i.e. sons of Lalji in the year 1995 and the suit land was exclusively allowed by the Panches in favour of the plaintiff and defendant No. 1. However, subsequently another Partition Suit No. 36 of 1999 was filed by both the brothers claiming to the extent of 1/3rd share from the total land measuring 3 kathas 8 dhurs. In that partition both the brothers i.e. plaintiff and defendant No. 1 claimed jointly 1/3rd share from other co -sharer i.e. two brothers of Dilo Das. The plaintiff alleged that subsequently in the year 2002 defendant No. 1 sold 15 dhurs of land to one Bhupendra Narayan Sinha, defendant No. 2 and therefore, he filed present suit for partition to the extent of 1/2nd share in the suit property.

(3.) AFTER trial the trial court recorded a finding that the suit property is the self acquired property of the defendant No. 1 and in fact the plaintiffs simple suit for partition is not maintainable because the plaintiff neither challenged the sale deed executed by Dilo Das in favour of Phoolwati nor the sale deed executed by Phoolwati in the year 1980 in the name of defendant No. 1, Devi Das nor the sale deed executed by Devi Das in favour of defendant No. 2 in the year 2002. The plaintiff filed title appeal and the lower appellate court dismissed the appeal.