LAULESIA DEVI Vs. RAM SARAN GOPE

JUDGEMENT

(1.) THE intervener defendant No.6 has filed this First Appeal against the Judgment and Decree dated 02.05.1977 passed by the learned Second Addl. Subordinate Judge, Biharsharif in title suit No.191 of 1970 / 61 of 1974 whereby the Court below has decreed the plaintiff's suit for partition to the extent of Rs.1/5th share.

(2.) THE plaintiffs filed the aforesaid partition suit claiming 1/5th share alleging that the suit property described in Schedule 'A' and 'B' i.e., the suit land are the joint family property. Bandhu Gope had two sons, namely, Khublal and Jhaman. Out of the two sons, Jhaman died issueless, therefore, the only son Khublal became the owner of the entire joint family property measuring 3 acres 54 decimals. Out of the said 3 acre 54 decimals, Khublal sold 2.2 acres to the different person and, therefore the joint family had only 1.52 acres of land. Khublal died leaving behind 5 sons namely, Bulchand Gope , the defendant No.1 Ram Charitra the defendant No.2, Ram Avtar the defendant No.3, Ram Sharan the plaintiff and Janak, defendant No.4. On the death of Khublal, Bulchand, the defendant No.1 became the karta of the family and in the capacity of karta, he acquired the Schedule 'B' property either in his name or in the name of the family members. There is no partition between the parties and the properties is still joint.

(3.) THE said intervener-defendant No.6-appellant filed contesting written statement. Her case in short is that the property measuring 2.5 decimal mentioned in Schedule 'B' is purchased by the appellant as such is her self acquired property. Likewise 97.5 decimal is her gifted property. So far the remaining 3.41 acres of land is concerned, her case is that there had been partition between the 5 brothers in the 13th Baishakh 1358 Fasli and Yadastha Batwara was prepared. The defendant No.1, Bulchand purchased the land measuring 3.41 out of his own fund received by him from in laws, therefore, it was his self acquired property. By registered deed of gift dated 27.6.1970, defendant No.1 out of love and affection gifted the said property in favour of the defendant No.6 and the defendant No.6 accepting the gift deed came in possession of the same and is paying rent regularly. There is no unity of title and possession between the parties. As such the plaintiff's suit be dismissed. On the basis of the aforesaid pleadings, the Court below framed the following issues :