JAINANDAN PASWAN Vs. SHEO KUMARI DEVI

JUDGEMENT

(1.) THE First Appeal No.22 of 1983 has been filed by the defendants -appellants against the preliminary decree passed by the learned 1st Sub Judge, Muzaffarpur whereas First Appeal No.1 of 1989 has been filed by the defendants -appellants against the final decree passed by the Sub Judge V, Muzaffarpur in Partition Suit No.33 of 1979. Both the First Appeals were directed to be heard together, therefore, both the appeals are heard together. The learned counsels in both the First Appeals are same.

(2.) THE plaintiff -respondent, Sheo Kumari Devi filed the aforesaid partition suit claiming 1/3rd share in the suit property described in Schedule I and II of the plaint. She claimed the said relief alleging that Arjun Paswan, the common ancestor died leaving behind his son, Chandradeo Paswan who is defendant no.1. The wife of defendant no.1, Dukhia Devi was deaf and dumb who is defendant no.2 under the guardianship of her husband. She died during the pendency of the suit. They have two sons namely, Sukhnandan Paswan and Jainandan Paswan. Plaintiff, Sheo Kumari Devi is the only daughter of Sukhnandan Paswan. Jainandan Paswan is defendant no.3 and his sons are defendant nos.4 and 5. The mother of plaintiff namely, Parwati Devi was married with Sukhnandan Paswan. After the plaintiff was born, she entered into second marriage with Sukhdeo Paswan in the month of May, 1956. Thereafter, she again entered third marriage.

(3.) KATHAS and he also acquired 9 kathas 19 dhurs by auction purchase in Title Suit No.269 of 1932. He also purchased 2 kathas 13 dhurs on 21.01.1955 in the name of his wife, Mania Devi. The parties are in joint possession of the suit property. Arjun Paswan died in 1940. Sukhnandan died on 12.08.1957. After the death of Sukhnandan, the plaintiff was brought up and educated by her grandfather and thereafter she was married with Vishundeo Das Kesav. Since the defendant no.3 is persuading the defendant no.1 to create document with a view to deprive plaintiff of her due share and defendant no.1 is thinking to sell 3 kathas land for Rs.70,000, the plaintiff asked for partition but refused. Hence the suit was filed. 4. The defendant nos.1 and 3 filed contesting written statement. Their defence in short is that Sukhnandan Paswan died issueless on 14.02.1955. He was married with Parwati Devi when he was aged about 13 years and Parwati was aged about 12 years. Therefore, there was no question of the plaintiff being their daughter. Later on, Parwati Devi married with Sukhdeo Paswan from whom the plaintiff was born as such, plaintiff is the daughter of Sukhdeo Paswan and not of Sukhnandan Paswan. They have already transferred 3 kathas 10 dhurs by registered sale deed dated 25.10.1978. The plaintiff has got no concern with the suit property. Defendant no.1 has purchased the property 1 bigha 5 kathas 8 1/2 dhurs land and it is incorrect to say that Sukhnandan has purchased the same in the name of defendant no.1. Defendant no.2 filed written statement in support of the case of defendant nos.1 and 3.