ALFRED BERNARD THAKUR Vs. MERY HILARIAN BERNARD

JUDGEMENT

(1.) THE second appeal has been filed by the plaintiff against the lower appellate Court Judgment and Decree dated 17.08.1998 passed by 5th Addl. District Judge, West Champaran in title appeal No.9 of 1997 dismissing the appeal and confirming the final decree dated 19.9.1994 passed by Subordinate Judge I, Bettiah, West Champaran in title suit No.42 of 1980 rejecting the objection of the plaintiff-appellant.

(2.) ON 05.04.1999, the following substantial question of law was formulated while admitting the appeal :-

(3.) FROM perusal of the application filed by the appellant which has been annexed as Annexure 1 with the affidavit filed at the time of hearing, it appears that before the Pleader Commissioner, the plaintiff filed an application on 6.6.1993 alleging that the plaintiff holds power of attorney on behalf of his sisters defendant No.3 to 6 and all these defendant No.3 to 6 have claimed that their share be allotted along with plaintiff's share vide paragraph 3. At paragraph 4, the plaintiff again mentioned that on his behalf as well as on behalf of his sisters, defendant No.3 to 6 in the capacity of power of attorney holder want that at the time of preparation of separate thakta for defendant No.1, 2 and 7 to 12, it should be done in such a manner that the remaining properties of defendant No.3 to 6 and the plaintiff be in one block meaning thereby that the same to attache to each other. Considering his application, one block has been allotted in favour of the plaintiff and his sisters defendant No.3 to 6. It is not the case of the plaintiff that any less share has been allotted to them. The only ground raised is that the final decree is not according to the preliminary decree. So far this question is concerned, the application referred to above filed by the appellant before the Pleader Commissioner is complete answer to the appellants contention. The appellant himself submitted that in one block share of plaintiff and defendant No.3 to 6 be allotted. Accordingly, in one block, the same has been allotted. Admittedly, plaintiff is the power of attorney holder of his sisters, defendant No.3 to 6. If now, they so like they may pray before the Court to carve out their share out of the said block but the contention of the plaintiff-appellant as well as the supporting defendant No.3 to 6 who are supporting respondent in this second appeal is that because no separate thakta has been allotted, final decree proceeding should be set aside. In my opinion, the appellant cannot be allowed to approbate and reprobate. At one place, he prayed that his share be allotted along with share of his sisters which has been allotted. I, therefore find that by no stretch of imagination, it can be said that the final decree is contrary to the preliminary decree. After getting benefit on the basis of the application, now the plaintiff and the defendant No.3 to 6 supporting each other are praying that because the share has not been separated, the entire final decree be set aside which they cannot be allowed to raise now.