PARMANAND YADAV Vs. JAGDEO YADAV

JUDGEMENT

(1.) THE plaintiffs have filed the present appeal under Section 100 of the Code of Civil Procedure aggrieved by the judgment and decree dated 29.5.2012 and 7.6.2012, respectively passed -by the Ad hoc Addl. District Judge, 2nd, Lakhisarai in M.T. Appeal No. 16 of 2007 whereby the judgment and decree dated 21.4.2007 and 28.4.2007 respectively passed by the learned Munsif, Lakhisarai in T.S. No. 68 of 1991 was affirmed. For the sake of convenience, the parties shall be referred by their status at the trial.

(2.) THE plaintiffs filed the suit seeking a declaration that the property set out in schedule -l belongs to the share of the appellants and the defendant 2nd set has no concern with the same. They also sought that the original deed dated 20.7.1991 (Ext. -B) pending registration be called for and set aside. As per the plaintiffs' case, the original defendant No. 4 (now represented by his L.R., respondent Nos. 4 to 7) along with the plaintiffs and respondent No. 8 constituted a joint family governed by Mitakshara School of Hindu Law. Sudama Yadav being the head of the family died on 29.5.1974 leaving behind three sons in the state of jointness but subsequently nucleus of jointness severed by family partition under a 'Panchnama' dated 29.8.1982 and the suit property fell in the share of the plaintiff. The plaintiffs later came to know that the original defendant No. 4 by a sale deed dated 20.7.1991 sold the suit land in favour of another set of defendant who made attempts to dispossess the plaintiffs necessitating filing of the suit.

(3.) THE trial court framed issues considering the rival claims of the parties and permitted them to lead evidence. In consideration of issue No. 5 the learned trial court held that it was the prime duty cast on the plaintiff to prove the note regarding giving of 'Jethans' by Parmanand Yadav to Sadanand Yadav was subsequently added by interpolation in 'Panchnama' and the plaintiffs failed to produce any cogent evidence to demonstrate the same. It was also held while considering issue Nos. 1, 2, 3, 4 and 6 that the plaintiff prayed for confirmation of partition but did not pay the requisite court fee inasmuch as the plaintiff assailed the sale deed but only paid the declaratory court fee and as such the suit as framed was not maintainable. Consequently, the suit was dismissed.