BENGALI SAH Vs. TERASH SAH

JUDGEMENT

(1.) THE defendants have filed this Second Appeal against the judgment and decree dated 08.03.1991 passed by the learned 2nd Additional District Judge, Saran at Chapra in Title Appeal No.73 of 1986 dismissing the appeal and thereby confirming the judgment and decree of the trial court dated 31.07.1986 passed by learned 2nd Subordinate Judge, Saran at Chapra in Partition Suit No.61 of 1979.

(2.) THE plaintiff-respondent filed the aforesaid suit for partition claiming 1/3rd share in the suit property alleging that the suit property is the joint family property of the parties. For the purpose of deciding this Second Appeal, the other facts are not necessary to be detailed because admittedly, the parties belonged to the same family.

(3.) THE trial court decreed the plaintiff-respondent's suit to the extent of 1/3rd share disbelieving the defendant-appellant's case. On appeal, the appellate court dismissed the appeal recording the finding that the plaintiff has got 1/3rd share. It appears that in the appellate court, argument was advanced by the defendant-appellant therein to the effect that the ancestral house property has not been included in the suit, therefore, the partition suit is bad and not maintainable. The appellate court dealt this question at paragraph 20 of the judgment and held that the suit for partition is not bad for partial partition.