RAGHUNANDAN MANTRI Vs. SHIV NANDAN MANTRI AND OTHERS

JUDGEMENT

(1.) The appeal is directed against the judgement and decree dated 23rd Aug. 1996 passed by the IInd Subordinate Judge, Purnia in Title Suit No. 2 of 1989 whereby plaintiffs' suit for partition in respect of the suit properties mentioned in schedule - A and C of the plaint was decreed in part on contest. It was further held that partition deed dated 10.05.1979, family settlements dated 21.09.1982 and 29.09.1982 and partition deed dated 24.04.1987 are valid and were acted upon by which partition by metes and bounds were taken place and the parties are separate in mess, transaction, residence and realising rent separately.

(2.) Plaintiffs have preferred this appeal against the aforesaid judgement and decree, however, during hearing of the appeal confines his grievance with respect to the findings recorded in Paragraph - 75 of the judgment wherein it has been held that mutation of two shops Dhaka Pharmacy and Mihir Pharmacy as also the land behind the shops must be mutated half and half between the plaintiff Raghunandan Mantri and the defendant Shivnandan Mantri as also for absence of any findings with respect to the godown in the land behind the Maheshwari Trading Company. In view of this limited grievances of the appellant full details of the suit properties as also other relevant details are not repeated which have already been recorded in the judgement elaborately.

(3.) Mr. Ganpati Trivedi, learned counsel for the appellant submits that property in question were partitioned as per the family settlement deed dated 29th of Sept. 1982 (Exhibit - A/2) although according to the plaintiffs, there was no partition by metes and bounds. Learned counsel submits that the Court below upon considering the oral evidence as also the partition deed dated 10.05.1979, family settlement deed dated 21.09.1982 and 29.09.1982 as also partition deed dated 24.07.1987 held that there was no partition between the family by metes and bounds. Mr. Trivedi submits that notwithstanding the stand of the plaintiffs that there was no partition by metes and bounds, however, even according to the partition as held by the court, the plaintiffs were entitled to the possession of the property as per the settlement deed dated 29th of Sept. 1982 (Exhibit - A/2). It is further submitted that on perusal of the aforesaid settlement deed, it would appear that two shops namely, Dhaka Pharmacy and Mihir Pharmacy at Dharamsala Road, Kishanganj were totally allotted to the plaintiffs- Appellant as also half of the open land behind the aforesaid two shops was exclusively allotted to the plaintiffs. The Trial Court, however, held contrary to the admitted settlement deed dated 29th of Sept. 1982 by holding that mutation of Dhaka Pharmacy and Mihir Pharmacy and land attached to it, must be mutated half and half in favour of Sheonandan Mantri and Raghunand Mantri. The said finding is contrary to the admitted settlement deed dated 29th of Sept. 1982. Similarly, as per the aforesaid settlement deed, the godown behind the Maheshwari Trading Company was allotted in the share of the plaintiffs. The trial court did not give any finding with respect to the said land and as such, the judgement and decree deserves to be modified to the above extent.