RAM SEWAK RAI Vs. DHANESHWAR THAKUR

JUDGEMENT

(1.) This revision by defendant 4 (defendant 2nd party) is directed against order dated 25.1.80 passed by the Munsif, Sitamathi (East) in Title Suit 63 of 1979, holding that the suit has not abated under Section 4(c) of the Bihar Consolidation or Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act 22 of 1956), hereinafter toe referred to as the 'Act'.

(2.) The plaintiffs (opposite parties 1 and 2) filed the aforesaid suit for declaration that the sale deed dated 17.8.79 executed by Kamal Thakur, defendant 1, who is opposite party 3 in this application, in favour of the petitioner, is illegal void and inoperative and for a direction that defendants 1st party (opposite parties 3, 4 and 5 of this application) be restrained permanently from cutting away the trees standing on the suit land. The plaintiffs' case in short is that one Henbansh Thakur died leaving behind his widow Rajkali Devi, and four sons, namely, Kamal Thakur, Hulas Thakur Ramswarath Thakur and Dhaneshwar Thakur. According to the plaintiffs, after the death of Harbansh Thakur, the aforesaid heirs inherited the property and they had one-fifth share each in the property inherited by them. These properties have been described in schedule 2 of the plaint. It is the further case of the plaintiffs that Kamal Thakui, defendant 1, would have only 61 decimals of the land out of the joint family property which was equivalent to his 1/5th share but he had sold 63 decimals of the land and also subsequently sold 15 decimals of land out of plot 2282, knata 24 situate in village Majaura described in schedule 1 of the plaint. on 17.8.79 to the petitioner (defendant 4) for Rs. 2,000/-. According to the plaintiffs, schedule 2 lands of the plaint are joint family properties. With these allegations, the plaintiffs have filed the aforesaid suit.

(3.) During the pendency of the suit, the petitioner filed an application under Section 4(c) of the Act praying therein that order be passed that the suit has abated. A rejoinder was filed to the said application by the plaintiffs contesting the said application. The Court below, by the impugned order aforesaid, rejected the said application and held that the suit has not abated. Hence, the present revision application.