JAGDEO SINGH Vs. SHIVADENI SINGH

JUDGEMENT

(1.) The plaintiffs-appellants instituted Partition Suit No. 50 of 1956, out of which this appeal arises, in the Court of the Subordinate Judge: Muzaffarpur, seeking a partition of their alleged shares in properties described in as many as seven schedules appended to the plaint. In Schedule 1 comprised of 1(ka), 1(Kha), 1(ga) and 1(gha), they claimed share to the extent of twelve annas, the remaining four annas share belonging to the defendants first party. In the lands specified in Schedule 2, the plaintiffs claimed share to the extent of ten annas, the remaining six annas belonging to the defendants first and second parties. In Schedule 8 lands subdivided into 8(ka) and 3(kha), the plaintiffs claimed to the extent of half the other halt belonging to the defendants first party. In the lands described in Schedule 4 to the plaint, both in 4(ka) and 4(kha), a claim was laid to the extent of 1/3rd; in 4(ka) the remaining 2/3rd according to the plaintiffs' case, belonged to the defendant first party and in 4(kha) the remaining 2/3rd interest belonged to the defendants first party and defendants 18 to 20, half and half. Share to the extent of five annas was claimed in the land comprised in Schedule 5, the remaining eleven annas belonging to the defendants first and second parties to the extent of three annas and to defendants 7 to 9 to the extent of eight annas. In the lands under the remaining two schedules, namely, in Schedules 6 and 7, the plaintiffs claimed to the extent of four annas and two annas 10 gandas, respectively.

(2.) Admittedly, one Rangi Singh was the common ancestor of the plaintiffs and of defendants 1 to 6. These defendants constituted the defendants first and second parties. Rangi Singh had two sons. Mannu Singh and Gumani Singh. That there was a complete separation between Mannu Singh and Gumani Singh and that Mannu Singh's only son Bhagelu Singh died in a state of separation from the sons of Gumani Singh without leaving any male or female issue was also admitted. The plaintiffs and defendants 1 to 6 belonged to Gumani Singh's branch who had three sons, namely, Basawan (sic) Singh, Biseshwar Singh and Sukeshwar Singh, Basawan Singh having two sons, namely, Ramdeni Singh and Sheodeni Singh. The latter, namely, Sheodeni Singh is defendant No. 1, defendants 2 to 3 being his sons, while defendant No. 4 is his grandson. Ramdeni Singh died leaving two sons, namely, Bihari Singh and Ruplal Singh. Ruplal Singh is defendant No. 5 and the widow of Bihari Singh is defendant No. 6. The plaintiffs represent Biseshwar Singh's branch, plaintiff No. 1 being the son of Bisheshwar Singh and plaintiffs 2 and 3 being his grandson and great grandson, respectively. Sukeshwar Singh admittedly died issueless. According to the case of the plaintiffs, Basawan Singh, the. father of defendant No. 1, and grandfather of defendant No. 5, had died during the lifetime of Gumani Singh, his father, and Ramdeni Singh, the elder brother of defendant No. 1 had pre-deceased Sukesar Singh. It was further the plaintiffs' case that one Abhiklakh Singh, a near agnate of the plaintiffs and of defendants 1 to 6 died issueless leaving his widow Mosst. Biseshwar Kuer who had come into possession of her husband's estate and who subsequently had gifted the entire property; in her possession to Bhagelu Singh aforesaid under a registered deed of gift dated the 9th July 1911. At the time of the death of Bhagelu Singh, Basawan Singh, the father of defendant No. 1 being dead, only Bishrshwar Singh and Sukeshwar Singh entered into possession of the properties which had been obtained by Bhagelu Singh by gift in equal shares by virtue of succession. It was further the plaintiff's case that after the death of Gumani Singh, the sons of Basawan Singh and Biseshwar Singh and Sukeshwar Singh had separated from one another in mess and business, but the properties bad not been partitioned by metes and bounds. Thereafter, on Sukeshwar Singh dying issueless and Ramdeni Singh, the elder brother of defendant No. 1 having predeceased Sukeshwar Singh, the intent of Sukeshwar Singh was inherited by plaintiff No. 1 and defendant No. 1 to the extent of half and half, and thus it was the plaintiffs' case that in the properties described in Schedules 1(ka) to 1(gha) which at one time belonged to Bhagelu Singh exclusively they had share to the extent of -/12/-, the remaining -/4/- belonging to defendants 1 to 4. On similar devolution, the plaintiffs claimed -/10/- annas interest in Khata Nos. 112, 30 and 175 of village Thikaha, otherwise called Aswari. The case of the plaintiffs in regard to the lands entered in Schedule 3(ka) was that they and the defendants first party had taken settlement of those lands; and in regard to the lands entered in Schedule 3(kha), their case was that Sukeshwar Singh had purchased those lands which, after the death of Sukeshwar Singh had come in possession and occupation of plaintiff No. 1 and defendant No. 1. Accordingly, the plaintiffs claimed -/8/-interest in both Schedules 3(ka) and 3(kha) of the plaint. In the lands entered in Schedules 4(ka), the plaintiffs claimed 1/3rd share on the ground that those lands had been taken in settlement by the plaintiffs and the defendants first party; the plaintiffs having 1/3rd interest and the remaining 2/3rd belonging to the defendants first party. In regard to the lands entered in Schedule 4(kha), the plaintiffs case was that these lands had been taken in settlement by the plaintiffs and by the defendants first party and defendants 18 to 20 and thus the plaintiffs had 1/3rd interest therein defendants first party and defendants 18 to 20 having 1/3rd each.

(3.) The lands entered in Schedule 5 and appertaining to khata No. 44 of mauza Parsauni Kapoor were owned by Bhagelu Singh and Gumani Singh to the extent of half and the remaining half belonged to Rajkaran Singh, the ancestor of defendants 7 to 9, and consequently out of the lands under Khata No. 44, the plaintiffs claimed -/5/- interest, the defendant first and second parties having -/3/-and the remaining -/8/- belonging to defendants 7 to 9. In regard to the land in Schedule 6 after its amendment by order dated the 18th September, 1957, the case of the plaintiffs was that in the khatian khata No. 3, plot No. 61 of village Ekaulia was entered in the names of three persons, namely, Amrit Rai, the ancestor of defendants 21 to 23. Sagam Rai, defendant No. 18 and Mosst. Biseshwar Kuer wife of Abilakh Rai in equal shares, and the plaintiffs claimed -/4/- interest in that khata. The lands appertaining to Schedule 7 were shown in the khatian in four shares; one share belonging to Bhagelu Singh and Gumaui Singh, another share to Rajkaran Singh and Pheku Rai, the ancestors of defendants 7 to 9 and the remaining two shares belonging to Lachhuman Rai and Maharaj Raj, the ancestors of defendants 10 to 17, out of the -/4/-interest in that khata belonging to Gumani Singh and Bhagelu Singh, the plaintiffs claimed 2 annas 10 gandas. On these allegations, the plaintiffs instituted the suit for partition claiming different shares in the different khatas as indicated above.