LACHHUMAN SINGH Vs. MAKAR SINGH

JUDGEMENT

(1.) Lachhuman Singh, defendant 1, is the appellant before us. The appeal arises out of a suit for partition. According to the plaintiffs-respondents, village Badgunda, which is the subject of partition, was given in 'khorposh' to one Deyal Singh by Khem Narain Singh. Deyal Singh had six sons. Subsequently, Deyal Singh made a 'mukarrari khorposh' grant on 14-11-1895, in favour of one Mod Narain Singh in respect of 428 and odd acres of land of village Badgunda. Mod Narain had four sons, namely, Lachhuman Singh, Meghlal Singh, Guru Prasad Singh and Makar Singh. A tenure-holder's khewat, no. 5, was prepared in respect of 428 and odd acres of land in the names of Lachhuman Singh, Meghlal Singh and Guru Prasad Singh, Makar Singh plaintiff 1, being a minor at the time. It was alleged that the parties had been messing separately for more than fifteen years before the suit and were also cultivating the bakasht lands separately according to convenience of cultivation, but there was no partition by metes and bounds. Makar Singh and the sons of Guru Prosad Singh were the plaintiffs who brought the suit, each claiming 4 annas share.

(2.) Lachhuman Singh, the eldest Son of Mod Narain, was the principal defendant who contested the suit. The heirs of Meghlal Singh, who were also ranged as defendants, supported the case of the plaintiffs. The Substantial defence of Lachhuman Singh was that there was a previous partition of the property by metes and bounds as a result of an award made by certain arbitrators on 3-6-1925. It was alleged that Lachhuman Singh was entitled to 6 annas share on the strength of a custom in the family under which the eldest son got a large share. It was alleged that as there had already been a partition of the property which was binding on the parties, the suit for a second partition was not maintainable.

(3.) The learned Subordinate Judge framed several issues, some of which are of no importance at this stage. On the question as to whether there was a previous partition, the learned Subordinate Judge found that the award on which the appellant relied was an invalid award which was never acted upon. He further found that there was no previous partition in fact, though the lands were being cultivated separately for convenience of cultivation. He also found that the appellant had failed to prove a family custom under which the eldest son was entitled to a larger share. On these findings he decreed the suit for partition, holding that plaintiffs 1 and 2 were entitled to 4 annas share each.