TILAKDHARI RAI Vs. PARMA RAI

JUDGEMENT

(1.) These two appeals arise out of the same Judgment of the Court below. First Appeal No. 236 of 1958 is by the plaintiff Tilakdhari Rai. He instituted the suit for a declaration that he was the next reversioner to the estate of one Ganesh Rai and was entitled to the lands described in Schedules I and II of the plaint which had been attached under Section 146 of the Code of Criminal Procedure and that the defendants had no right, title or interest in the same. According to the plaintiff, his great (sic) great grandfather, Daswant Rai alias Manorath Rai, had a son, Balkhandi Rai, from his first wife, who had four sons, Chitbahal Rai, Man Rai, Gobardhan Rai and Ganesh Rai. Chitbabal had a son, Autar, who died leaving a widow, Adhikar Kuer, Man Rai died leaving widow, Malida Kuer, Gobardhan died unmarried Ganesh died leaving a widow, Dhanesra Kuer. The plaintiff, there fore, claims to be the nearest and sole surviving agnate of Ganesh Rai, who, according to him, died last. His case was that Ganesh died after the death of all his other three brothers and also after the death of Autar Rai, son of Chitbahal Rai, before the cadastral survey, and his widow, Dhanersra Kuer, was recorded in the survey papers along with the other two widows, Malida Kuer and Adhikaro Kuer. The names of these two widows, Malida and Adhikaro, according to the plaintiff, were got recorded for the sake of consolation to them, though the properties in suit were inherited only by Dhanesra Kuer as a Hindu widow. Dhanesra died in Baisakh 1358 Fs. Thereafter, there was dispute under Section 145 of the Code of Criminal Procedure between the parties and in that proceeding the lands in suit were attached on the 4th of February, 1953, under Section 146 of the Code of Criminal Procedure. The plaintiff, therefore, filed the suit on the 31st of January, 1956, out of which these two appeals arise.

(2.) Defendant No. I in the suit is Parma Rai who claims to be the great great grand son of one Adit Rai who is said to be a nephew of Das want Rai, though, according to the plaintiff, he does not belong to the family of Daswant Rai. According to the genealogy given by defendant No. 1 also, Balkanadi Rai is shown to have four sons, Chitbahal, Man, Gobardhan and Ganesh. A third genealogy has been set up by defendant No. 2, the deities, and the other defendants, who are trustees of the properties gifted to the deities by Adhikaro, widow of Autar Rai, and Dhanesra Kuer, widow of Ganesh Rai. According to that genealogy also, Balkhandi had four sons, as named above. The contest between the plaintiff and defendant No. 1 was with respect to their being next reversionary heirs of the sons of Balkhandi Rai. According to the plaintiff, he was the next reversioner and the defendant No. 1 did not belong to that family at all, while according to the defendant No. 1, he was the next reversioner and the plaintiff did not at all belong to the family of Daswant Rai. According to the deities and the trustees, the one of the trustees, Meghnath Rai, defendant No. 2 (c) was the reversioner, and not the plaintiff nor defendant No. 1. The deities, however, were concerned only with the properties described in Schedule 1 to the plaint which had been given to them by a deed of gift dated the 12th of September, 1930, by the two widows, Adhikaro and Dhanesra, Malida having already died.

(3.) The learned Subordinate Judge accepted the genealogy given by the plaintiff and held the plaintiff to be the next reversionary heir. The learned Judge also accepted the deed of gift as genuine and held it to have conferred a valid title on the deities. The suit with respect to Schedule 1 properties, therefore, was dismissed inasmuch as according to the finding of the trial Court, the said properties were validly gifted to the deities. The suit with respect to Schedule II properties was, however, decreed inasmuch as according to the finding, of the trial Court, the plaintiff was the next reversionary heir and defendant No. 1 was a stranger to the family. The plaintiff filed First Appeal No. 236 of 1958 against the decree dismissing the suit with respect to Schedule 1 properties. Defendant No. 1 filed First Appeal No. 243 of 1958 against the decree with respect to Schedule II properties. Both these appeals were directed to be heard together and they were placed before us for being heard together.