RAM PARWESH PASWAN Vs. DHANESHWAR PASWAN

JUDGEMENT

(1.) HEARD Mr. Dhrub Narayan, the learned senior counsel appearing on behalf of the appellants and Mr. Suraj Narayan Yadav, the learned counsel appearing on behalf of the plaintiff -respondents. Taking exceptions to the judgment and decree of the appellate court below affirming the decree for partition in favour of the plaintiffs, the defendants have preferred this appeal. The relevant genealogical table as given in the plaint has not been disputed between the parties according to which Kewal Dushad had two daughters namely Kaushali Devi and Etwaria Devi. Kaushali Devi was married to Chhathu Dushad and Etwaria Devi was married to Deo Nath Paswan. The plaintiffs are from the branch of Kaushali Devi and claiming their right, title and interest over the property as such. The defendants are Deo Nath Paswan and his sons. The suit has been filed with regard to the lands of C.S. khata Nos. 5, 7, 8, 33 and 58 of village Sobh, P.S. Barachatti, District -Gaya and the details of the suit land have been mentioned in schedule -B of the plaint. The plaintiffs have come out with the case that the suit properties belonged to Kewal Dushad and after his death it had been inherited by his two daughters Kaushali Devi and Etwaria Devi. The plaintiffs have filed the suit seeking partition of their half share in the suit properties.

(2.) THE defendants resisted the claim of the plaintiffs firstly on the ground that the suit properties particularly the properties in khata No. 5 and 58 were the self acquired properties of the defendant no. 1 Deo Nath Paswan and was not the properties of Kewal Dushad. It is also the defendants' case that due to dispute in the family the entire properties of Kewal Dushad including the properties acquired by Deo Nath Paswan in khata No. 5 and 58 were partitioned by oral family arrangement through punches wherein the plaintiffs have been given 1/3rd share, the defendant no. 1 Deo Nath Dushad has been given 1/3rd share and the defendant no. 2 Ram Khelawan Paswan son of Deo Nath Paswan has been given the remaining 1/3rd share. It would be pertinent to mention here that the defendant no. 2 Ram Khelawan Paswan as defendant has also asserted that C.S. plot no. 375 of C.S. khata no. 33 was exclusively inherited by Sugia Devi widow of Kewal Dushad and she had executed an unregistered gift deed dated 21.04.1948 accompanied with delivery of possession over the said property in favour of the defendant no. 2 and on this basis he has claimed his exclusive title and possession over 42 decimal of land of plot no. 375.

(3.) THE defendants preferred appeal and after hearing the parties the appellate court has come to the finding that the plaintiffs have failed to establish the settlement of the lands of khata no. 5 and 58 with Kewal Dushad but in view of the admission by the defendants that they had earlier agreed to have a partition of the entire properties including the properties of khata no. 5 and 58 and the plaintiffs were given share therein accordingly, dismissed the appeal upholding the decree of the trial court. This second appeal has been admitted on the following substantial questions of law: -