RAJDEO PRASAD Vs. KAMALDEO PRASAD

JUDGEMENT

(1.) THE defendants have filed this First Appeal against the judgment and decree dated 8th April, 2009 passed by Sri Shyam Kishore Jha, the learned Subordinate Judge IV, Jehanabad in Partition Suit No.147 of 2003/169 of 2005 decreeing the plaintiff- respondent's suit to the extent of his half share.

(2.) THE plaintiff-respondent, Kamaldeo Prasad filed the aforesaid partition suit claiming half share in the Schedule-III property of the plaint. THE plaintiff claimed the said relief alleging that Bahadur Prasad was the father of plaintiff and defendant no.1. THE defendant nos.2 to 4 are the sons of defendant no.1. Said Bahadur Prasad died leaving behind his widow, Dhanmatiya Devi and two minor sons namely, Rajdeo Prasad, defendant no.1 and Kamaldeo Prasad, plaintiff. After the death of Bahadur Prasad, his widow shifted from her matrimonial village to her naihar village, Dharampur. After attaining majority, the defendant no.1 became the karta of the joint family. THE mother Dhanmatiya Devi had sufficient money which she collected from selling the property at her matrimonial village and she purchased lands in village Dharampur. THE plaintiff was an employee in Postal Department and he used to give his entire income to the defendant no.1 who was karta. THE defendant no.1 purchased many properties in the name of members of joint family. THE details of the joint family property have been mentioned in Schedule-I of the plaint. Out of the said Schedule-I property, Dhanmatiya gifted 1.54 acres i.e. Schedule-II of the plaint in favour of Ajay Kumar, the son of plaintiff and Prabhat Kumar, the son of defendant no.1 by registered gift deed dated 02.07.1983. THE said property is not the subject matter of the suit. Schedule-III property is remaining land excluding Schedule-II from Schedule-I land. THEre were some differences between the females and, therefore, the parties separated in mess. THE defendant no.1 gave some land to the plaintiff for the purpose of separate cultivation and for the sake of convenience but there had been no partition by metes and bounds. THE plaintiff demanded partition and on refusal filed the partition suit.

(3.) DURING the pendency of this First Appeal, an application under Order 41 Rule 27 read with Section 151 C.P.C. was filed by the appellant on 22.06.2011 praying therein to allow the appellant to adduce additional evidence by producing the certified copies of the registered sale deeds executed by the son of plaintiff and plaintiff-respondent in the year 2007 and registered sale deed dated 06.04.2011 executed by the plaintiff. The learned counsel for the appellant in support of this application submitted that the appellant had no knowledge about the execution of registered sale deeds by the son of plaintiff-respondent in favour of Sharda Devi and others on 09.01.2007 and sale deed dated 09.01.2007 in favour of Smt. Sushma Devi. So far registered sale deed dated 06.04.2011 is concerned, the same has been executed during the pendency of this appeal by the plaintiff-respondent. When the appellant came to know about the said sale deeds executed by son of plaintiff and plaintiff, he obtained certified copies by filing application on 08.06.2011. The certified copies were delivered to him on 09.06.2011. According to the learned counsel, all these three sale deeds are admitted documents. The said documents have been executed by the son of the plaintiff- respondent and the plaintiff-respondent himself and in these sale deeds, they have categorically admitted the fact of previous partition. Because the appellant had no knowledge about the said sale deeds, he could not produce the registered sale deeds of the year 2007 in the Court below and so far registered sale deed of the year 2011 is concerned, it is executed during the pendency of the appeal and, therefore, the said documents would be necessary to pronounce judgment in a more satisfactory manner. On these grounds, the learned counsel for the appellant submitted that the impugned judgment and decrees are liable to the set aside and the plaintiff's suit for partition be dismissed.