MAHABIR MISTRY Vs. SM LACHHMINI DEVI

JUDGEMENT

(1.) In this appeal, a preliminary objection has been taken to the effect that the appeal has become incompetent in view of the same having been dismissed as against some of the respondents.

(2.) The appeal is directed against a decree dismissing a suit for partition. The short facts relevant for the present purpose are as follows. The plaintiffs filed a genealogy, according to which one Kanhai had three sons, namely. Gangeshwari, Bisesari and Parmeshwari. Gangeshwari died issueless before the survey. Bisesari and his son Jagan also died before survey. The latter, however, left two sons Sahdeo and Mahadeo. Sahdeo also died long, before the suit, and his sons were impleaded as defendants 11 to 14 and 18. His brother Mahadeo was impleaded as defendant No. 8 and his sons were impleaded as defendants 9 and 10. It will be relevant to mention that one of the sons of Sahdeo was Dukharan (defendant No. 11) and his minor son, Rajkapur. was impleaded as defendant No. 27 and as respondent No. 26 to the present appeal. Similarly, another son of Sahdeo named Thakur was impleaded as defendant No. 1,8 and his minor son, whose name was not known, was impleaded as defendant No. 29 and as respondent No. 28 in this appeal. In the branch of Parmeshwari, he had three sons, Gopi, Lalchand and Jagmohan. Gopi's son and grandson were impleaded as defendants 1 and 2 respectively, and Lalchand's son and grandsons as defendants 3 to 7. It needs to be pointed out that one of the sons of Lalchand named Rambaran had a minor son, name not known, who was impleaded as defendant No. 28 and as respondent No. 27. The sons and grandsons of Jagmohan are the plaintiffs.

(3.) The case of the plaintiffs is that the family had 8.35 acres of land in village Shahpore (mentioned in Schedule No. 1) and 75 decimals of land in village Aurangabad (mentioned in Schedule No. II). In the record of survey, Sahdeo and Mahadeo were recorded in respect of 1/3rd share, Lalchand in respect of another l/3rd and Parmeshwari in respect of the remaining l/3rd. According to them, Lalchand had separated from his father Parmeshwari and for that reason he was separately recorded in respect of 1/3rd share. At the stage of evidence, the explanation given for the share of Lal chand, as stated above, was that he had taken more lands than he was entitled to according to his share in Schedule I lands in lieu of having given up his share in Schedule II lands. On this basis, the plaintiffs said that they were entitled to 1/6th share in Schedule I lends, defendants 1 and 2 to 1/ftth share, defendants 8 to 14 (Mahadeo, his sons and heirs of Sahdeo) to l/3rd and Lalchand to the remaining 1/3rd in view of what has been stated above. According to the plaintiffs, they were further entitled to half share in Schedule II lands, Lalchand getting no share therein on account at' his having become separate from his father and the other half being that of defendants 1 and 2. The case of the plaintiffs in respect of Schedule II lands was that they were the separate properties of Parmeshwari and the other branches had nothing to do with them.