DUKH HARAN TEWARY Vs. DULHIN BIHASA KUER

JUDGEMENT

(1.) This is an appeal by the defendants arising out of a suit instituted for declaration of title to and recovery of possession of lands mentioned in the three schedules given in the plaint. Of the two plaintiffs, plaintiff No. 1 is the mother and plaintiff No. 2 is her son. According to the genealogy given in the plaint which was accepted by the trial Court, one Jiba Rai had two sons Deodhari Rai and Saudagar Rai and a daughter Mt. Parichha Kuer. Deodhari and Saudagar arc dead. Bataso Kuer is the widow of Saudagar Rai. Plaintiff No. 1 is the daughter of Saudagar Rai. Mt. Parichha Kuer was married and had a son Ramgati Tewari who died on the 16th of December, 1952. The properties in Schedules 1 and 2 of the plaint belonged to Saudagar Rai though dunng his life-time his sister's son Ramgati Tewari was put in possession of the same by way of maintenance. Ramgati lost his father in infancy and, as there was no land to maintain the child and the mother, Saudagar Rai brought both his sister and her son to his house and maintained them. Ramgati became very helpful to the maternal uncle in management of properties and in fighting litigations over lands in Schedule 2. Saudagar out of satisfaction and sympathy gave the Schedules 1 and 2 lands to be enjoyed by Ramgati. On the death of the latter, the properties were to be inherited by Saudagar's heir, his widow Bataso Kuer. She, however, made a deed of gift in favour of plaintiffs Nos. 1 and 2 and that is how plaintiff No. 1 was joined in the suit and claimed along with plaintiff No. 2 suit properties. The properties in Schedule 3 were acquired by Ramgati Tewari and the plaintiff No. 2 is entitled to the same as nearest Atma-bandhu of Ramgati Tewari. The defendants posed themselves as the agnates of Ramgati Tewari, after the death of Ramgati in Title Suits No. 80/20 of 1949/50 and No. 70/22 of 1950/52 where Ramgati Tewari and some others were defendants. Their claim to be substituted in place of Ramgati Tewari in those two suits was allowed in spite of the objections raised by Ramsingasan Rai, plaintiff No. 2. Being emboldened by that order, the defendants succeeded in dispossessing the plaintiff from the suit lands. On these allegations the present suit was instituted.

(2.) The contest by the defendants was based on denial of the plaintiffs' genealogy. They asserted that Mr. Parichha Kuer, Ramgati's mother, was not a sister of Saudagar. She was the daughter of Gagan Rai, brother of Jiba Rai, who was the father of Saudagar. The properties of plaint Schedule 1 belonged to Gagan Rai, and he having no son, brought his daughter Parichha Kuer and her son Ramgati Tewari to live with him. After Gagan Rai's death Ramgati Tewari came over possession of those properties and he also obtained the properties of Schedule 2 of the plaint by inheritance from one Mt. Rajwanti Kuer. Schedule 3 properties were also acquired by him. Thus Ramgati was the full owner of all the suit properties. His father was Lila Tewari having an alias name of Chhabila Tewari who with Juthan Tewari and Kalicharan Tewari were sons of one Takia Tewari. The defendants are the sons of Khedu Tewari who was the son of Juthan Tewari. Thus the defendants claimed that they were the agnates of the deceased Ramgati Tewari and came in possession of all the properties on the death of Ramgati. They denied the plaintiffs' title altogether. They also stressed that their claim to inheritance through Ramgati could no longer be challenged as that question had been decided in the two earlier suits when they applied for being" substituted in place of deceased Ramgati. That order would operate as res judicata for the present suit.

(3.) On these pleadings the parties went to tria). The first Additional Subordinate. Judge, Arrah, gave judgment in favour of the plaintiffs holding that the order passed under Order 22 Rule 5, Civil Procedure Code, (substitution) in the two earlier suits would not operate as res judicata, and on evidence, the defendants were not the agnates (gotias) of Ramgati Tewari. They had no title to the suit properties. He found that the plaintiff No. 2 was the nearest Atma-bandhu of Ramgati Tewari and was entitled to inheritance from him in respect of the properties in Sche-dule 3. The properties in the other two schedules belonged to Saudagar, on whose death his widow Bataso Kuer succeeded to them. She having executed a deed of gift in favour of the plaintiffs, she was a necessary party in the suit as otherwise, plaintiff No. 2 alone could not have been entitled to maintain the suit for the properties. Accordingly, he declared the title of the plaintiffs and decreed the suit for recovery of possession from the defendants. Against that, the appeal is brought by the defendants to this Court.