BHUTHUR RAI Vs. MAHADEO RA

JUDGEMENT

(1.) THE defendants 2nd set have filed this first appeal against a part of the judgment and decree dated 8.7.1978 passed by Sri Sankatha Prasad, the learned 6th Additional Subordinate Judge, Motihari, East Champaran in partition Suit No. 113 of 1975/ 25 of 1977 decreeing in part the plaintiff's suit.

(2.) THE original plaintiff Mahadeo Rai filed the aforesaid suit claiming for declaration that the sale deed dated 2.12.1919 executed by Ram Lal Rai and Dayal Rai is forged and fabricated document which is not binding on the plaintiff and for partition of the suit property to the extent of 3 1/2 Ana share in Schedule 2 lands and 8 Ana share in schedule 3 land.

(3.) ACCORDING to the plaintiffs both the sons of Shankar Rai separated in mess prior to cadastral survey. They also partitioned the movable properties but the lands were not partitioned by metes and bounds. Both the branches have been cultivating separately according to their convenience and the lands are joint. One Mushar Ahir was Bhagina of the parties who was maintained and brought up by the parties therefore, 2 ana share was given to him in the ancestral property. The plaintiff and the defendant 1st set have got 7 Anna share whereas the defendant 2nd set have got 7 Ana shares in the ancestral properties i.e. Khata No. 47 mentioned in detail in Schedule 2 of the plaint. According to the share of the parties in the cadastral survey record of right (1902) the shares were specified i.e. 7 anas share in the share of Sri Narain, 3.5 ana shares in the name of Deoraj and 3.5 share in the name of Suba whereas 2 ana share in the name of Mushar in Khata No. 47. In the revisional survey record of right (1927) the entire lands have been recorded in the share of defendant 2nd party to the extent of 12 anas and the defendant 1st party to the extent of 4 anas whereas 2 anas have been recorded in the name of defendant 3 rd party i.e. branch of Bhagina. Therefore, the entry in the revisonal survey is wrong.