DHANPAT SAO Vs. TULSI SAO

JUDGEMENT

(1.) The plaintiffs -appellants have filed this First Appeal against the judgment and decree dated 06.12.1980 passed by the learned Subordinate Judge, Jamui in title suit No.29 of 1979 dismissing the plaintiff's suit for partition.

(2.) The plaintiffs filed the aforesaid suit for partition claiming 1/6th share in Schedule II and III properties alleging that one, Bhiko Sao had two sons namely, Maktu Sao and Sona Sao. The defendants 1st set are the descendants of Maktu Sao. Sona Sao had three sons namely, Huro, Bhatu and Badri. Badri is the plaintiff no.1 and his two sons, Dhanpat and Madan and grandsons are the other plaintiffs. The brothers and descendants of brothers of Badri are the defendants 2nd set and 3rd set. The plaintiffs further alleged that after death of Bhiko Sao, his two sons came in joint possession over the suit lands situated in Chakai, Heth Chakai, Ramchand Dih and Bhogan. Their names were also recorded in survey khatiyan. Both brothers died in the state of jointness and on their death, their descendants came in joint possession of the suit properties. There had been no partition between the parties and since last year, the parties are separate in mess and cultivation. There has been no partition by metes and bounds. Further case is that the land which is cultivated by one party, in one year, is cultivated by the other party, in the next year and vice -versa.

(3.) The defendant no.3 only appeared and filed written statement. The main defence of the defendant no.3 is that there had already been partition between two brothers in the year 1915 and the Schedule II lands were allotted in the share of Maktu Sao whereas the lands of Shankari in Dumka were allotted in the share of Sona Sao and since then the parties have got no connection with each other. So far Schedule III property is concerned, it was purchased by plaintiff no.1 and defendant no.1 jointly and thereafter, it was also partitioned between them in 1944. On these grounds, the defendants stated that the partition suit be dismissed.