SHIVJI SINGH Vs. SILA DEVI AND ORS.

JUDGEMENT

(1.) THIS first appeal has been filed by the plaintiff -appellant against the judgment and decree dated 16.07.1985 passed by learned 2nd Subordinate Judge -Chapra in Partition Suit No. 118 of 1980 whereby the court below dismissed the plaintiff's suit for partition.

(2.) THE plaintiff -appellant filed the aforesaid suit claiming partition of his half share in the suit property mentioned in Schedule -1 and 2. According to the plaintiff, Mohan Raut died leaving behind two sons, namely, Kardhan Raut and Ramdhani Raut. Mohan Raut and Kardhan Raut were recorded in C.S. Khatian. After C.S., Kardhan Raut died leaving behind his only son Lalu Raut and his brother Ramdhani in the state of jointness. The names of Ramdhani and Lalu were recorded in R.S. Khatian. Just thereafter Ramdhani and Lalu separated themselves in the year 1924. The movable properties were partitioned and the share of both the parties was defined in respect to immovable property. They were cultivating some property separately and some property jointly according to their convenience. Ramdhani died in the year 1925 -26 in the state of separation leaving behind his only son Keshwar Raut. Keshwar Raut also died in the year 1939 leaving behind his widow and a daughter Marachiya. The widow came in possession of the property and after her death in the year 1942 the sole daughter Marachiya came in possession of the property. Marachiya had a daughter Panpati. On the death of Marachiya in the year 1951 her daughter Panpati inherited the entire property of Keshwar and came in possession. Panpati is defendant 2nd set, who has got half share. She sold half share to the plaintiff on 04.02.1990 by registered sale deed. Possession was delivered and the plaintiff is coming in joint possession along with defendant 1st set.

(3.) THE further defence is that Marachiya is not the daughter of Keshwar Raut and in fact Keshwar Raut died issueless in the state of jointness with defendant 1st set, therefore, the entire property was inherited by defendant 1st set by the principles of survivorship. Panpati is not the daughter's daughter of Keshwar Raut, therefore, she has no concern with Keshwar Raut or his property. She has no right to execute any sale deed in favour of plaintiff. The sale deed is forged, fabricated and the same was brought into existence with the help of a fictitious lady. Panpati never executed any sale deed in favour of plaintiff. No consideration passed nor the plaintiff came in possession of the disputed land. During lifetime Keshwar Raut had filed suit for realization of rent wherein he himself admitted that he and the defendant 1st set were members of joint family and he is the karta. He also dealt with the landed properties for himself and on behalf of the guardian of defendant, who was minor at that time. Some properties were acquired by the State of Bihar. The award was prepared and the defendant 1st set contested the case upto the High Court. In 1979 encroachment case was filed against Narsingh Sah. The plaintiff is the advocate clerk and is making pairvi on behalf of Narsingh Sah.