SHIV PUJAN MISTRI Vs. KANHAI MISTRI

JUDGEMENT

(1.) Heard learned counsel for the appellant.

(2.) Briefly stated, the case of the plaintiff before the trial Court was that the land and house as described in Schedule I of the plaint were ancestral land of the plaintiff recorded in old survey record of rights in 1914 in the name of the grandfather of the plaintiff, namely, Sohar Lohar. His case before the trial Court was that Sohar Lohar and Tilak were full brothers and were separate by metes and bounds and separate survey was done and Khata was prepared in the year 1914 in their respective names. Sohar Lohar had six sons but all died issueless except Ganpati and Ruti. Two sons thus, became absolute owner of the whole property of Sohar Lohar. Ganpat also died leaving behind his only son Mahadeo Mistry, the plaintiff in the suit. Ruti died leaving behind him a son Ram Chandra, who was impleaded proforma defendant in the suit. Further case is that Mahadeo became separate and Ram Chandra had given his share to the plaintiff and executed "Bazidawa" with respect to the suit land. The plaintiff claimed before the trial Court that he was the absolute owner of the suit land.

(3.) Tilak, the brother of the said Sohar Lohar died leaving behind two sons, namely, Dasain and Rameshwar. Rameshwar had two sons, Fakirchand and Sarju. According to the plaintiff, Dasain had no male issue and had five daughters, who after their marriage were living at their respective in-laws' places. So far as Bhagni, one of the daughters of Dasain is concerned, she had some matrimonial disputes with her husband and was forced to come back to her maternal home. The plea of the plaintiff before the trial Court was that seeing the condition of Bhagni Respondent no. 2 herein, (the plaintiff) allowed her to stay with him in his house which is the part of the suit land. The plaintiff claimed that husband of Bhagni died after lapse of sometime, whereafter the plaintiff asked Bhagni to leave his house for her in-laws' place. Bhagni refused and she claimed in fact her title over the suit land. It was in this circumstance that the plaintiff approached the Court by filing suit for declaration of title and recovery of possession in respect of the property as described in Schedule of the plaint. Bhagni was impleaded as defendant no. 2.