SAVITRI DEVI Vs. JAIWANTI DEVI

JUDGEMENT

(1.) THE defendants have filed this first appeal against the judgment and decree dated 27.08.1982 passed by the learned 2nd Additional Subordinate Judge, Biharsharif in Title Suit No. 113 of 1977/36 of 1982 whereby the court below decreed the plaintiff's suit for partition.

(2.) THE plaintiff -respondent no. 1 Smt. Jaiwanti Devi filed the aforesaid partition suit for partition of her 1/3rd share in the suit property. She claimed the said relief alleging that Chhatar Singh, Tufani Singh and Rohan Singh were the three brothers. Tufani Singh had a son Bodhu Singh. The three brothers separated before survey operation and their separate possession was shown in the survey record of right. They were cultivating the lands according to their convenience but there was no partition by metes and bounds between them. Bodhu Singh died in November, 1956 in the state of separation leaving behind his only daughter, the plaintiff Smt. Jaiwanti Devi. The defendant no. 1 is the daughter of Mahabir Singh, who was son of Rohan Singh. Bodhu Singh had performed marriage of the plaintiff in Baishakh 1363 Fasali but thereafter on 10th of Kartik 1364 Fasali he died, as such the plaintiff succeeded to his property. The defendants represent the branch of Chhatar Singh and Rohan Singh. Anupa Kuer wife of Mahabir Singh in collusion with her daughter Mundrika Devi (defendant no. 1) filed Title Suit No. 16 of 1957 against the defendant nos. 2, 3 and 6 leaving aside the plaintiff for declaration of her title and partition of the property belonging to Mahabir Singh. In the said suit the existence of plaintiff as daughter of Bodhu Singh was denied by them and they compromised and filed fraudulent compromise petition on 15.12.1957 on the basis of which a compromise decree was passed on 15.04.1961. The plaintiff was neither party nor had knowledge and further the compromise decree was fraudulent. It is not binding on the plaintiff and that the decree is void and illegal. In fact, the plaintiff is still in joint possession of the property and she is residing in the house of Bodhu Singh. She is a co -sharer with the defendants so she is entitled to 1/3rd share in the suit property. Schedule -II property is self acquired property of Bodhu Singh, who was in exclusive possession over the same till his death. After his death the plaintiff came in possession. By some bogus transaction and without consideration, some lands described in Schedule -IV of the plaint were transferred by the defendants.

(3.) THE defendant nos. 2 to 10 also filed separate written statement wherein they alleged that Bodhu Singh died issueless on 20.11.1955. Wife of Bodhu Singh died 40 -42 years earlier. Their rest defence is in the same line as that of defendant no. 1.