RAMDHARI SINGH Vs. RAMBHAROSA SINGH

JUDGEMENT

(1.) This is an appeal against the decision of the . Additional Subordinate Judge of Gaya who decreed the suit of the plaintiffs on contest against defendants 6 and 7 and 'ex parte' against the rest. He also ordered a preliminary decree for partition to be drawn up having declared the plaintiffs' title to the properties in the suit. He further held that the plaintiffs were entitled to get mesne profits which would be ascertained in subsequent proceedings and that on plaintiffs' petition a commissioner would be appointed to carve out a separate 'takhta' of 6 annas 8 plea kham which is equivalent to 2 annas 8 pies pokhta out of 16 annas kham which is equivalent to 6 annas 10 pies pokhta of the mukarrari interest in tauzi Nos. 12443 and 12455. When the appeal was filed the appellants were Ramdhari Singh, appellant 1, who was defendant 6 in the Court below, and Kishundeo Tiwari, appellant 2, who was defendant 7 in the Court below.

(2.) A preliminary objection has been taken that the appeal has abated. Before I deal with the preliminary-objection it is necessary to state briefly what the case of the plaintiffs is.

(3.) The plaintiffs filed the suit for a declara tion of their title to 6 annas 10 pies pokhta mukarrari interest in villages Nima and Kornatho bearing tauzl Nos. 12443 and 12455. These tauzis were carved out of the parent tauzi No. 4548. The plaintiffs, father and son are members of a joint family of which plaintiff 1, Rambharosa Singh, is the 'karta'. They had purchased 2 annas 8 pies mukarrari interest in villages Nima and Kormatho belonging to Durga Singh in exe cution of a money decree in May, 1940, and deli very of possession was given by the Court. The case of the plaintiffs was that this 2 annas 8 pies pokhta mukarrari interest of Durga Singh in villages Nima and Kormatho was entirely separate and had nothing to do with the 2 annas 8 pies milkiat share of his son Gobardhan Singh, de fendant 1. Defendants Ramdhari Singh, defen dant 6, and Kishundeo Tiwari, defendant 7, were the real defendants who contested the suit of the plaintiffs. Their contention in the main was that the plaintiffs had acquired nothing by the execution sale in May, 1940, and that in any event the mukarrari interest of Durga Singh of 2 annas 8 pies after his death merged in the 2 annas 8 pies milkiat share of Gobardhan Singh, defen dant 1.