RAJA DEVI Vs. PARBHAWATI DEVI

JUDGEMENT

(1.) THE defendants have filed this second appeal against the judgment and decree of the Lower Appellate Court dated 14.10.1985 passed in Title Appeal No.55 of 1983 whereby the Lower Appellate Court allowed the appeal in part and thereby modified the judgment and decree of the trial court dated 27.05.1983 passed by 4 th Additional Sub Judge, Arrah in Title Suit No.79 of 1980.

(2.) THE plaintiffs filed the aforesaid suit for partition of the suit property alleging that the ancestor of the parties namely Bhikhari Choudhary had three sons. Mangal Choudhary died issueless in jointness with his brothers. Plaintiff is the grand -daughter of third son, Kanhai Choudhary being the daughter of Bishwanath Choudhary. The branch of second son of Kanhai and the first son of Bhikhari Choudhary are the defendants. According to the plaintiffs, there was separation between two sons of Kanhai but there was no partition by metes and bounds. Since the Chakbandi operation was going on in the village, the suit for partition has been filed for houses used for residential purpose, orchard and land having bamboos clumps which are exempted from Chakbandi operation. The plaintiffs claimed 1/4th share.

(3.) RECORDING the finding that the suit lands are used for agricultural purpose as such, it is barred under Section 4(c) of the Consolidation Act. On appeal, the Lower Appellate Court recorded the finding that Sonapati is the daughter of Bishwanath. The Lower Appellate Court held that suit had abated regarding the house on plot no.601, 604 of khata no.57 and plot no.677 of khata no.128. The Lower Appellate Court further held that plot nos.524 and 523 measuring 16 decimals and 23 decimals of khata no.110 which are Baswari and orchard are not within the purview of Consolidation Act. Accordingly, the Lower Appellate Court held that the plaintiff has got 1/4th share in the aforesaid two plot nos.524 and 523 and decreed the plaintiffs suit to that extent only.