SUTHRI AND ORS. Vs. MUNILAL SINGH AND ORS.

JUDGEMENT

(1.) THIS First Appeal has been filed by the defendant No. 1 and 2 against the Judgment and Decree dated 26th March, 1977 passed by learned 3rd Addl. Subordinate Judge, Siwan in Title Suit No. 12 of 1971/178 of 1975 whereby the Court below decreed the plaintiff respondent's suit for partition.

(2.) THE plaintiff respondent filed the aforesaid suit claiming partition of his share to the extent of 8 bigha 7 katha 12.5 dhur in Schedule I land and half share in Schedule II land.

(3.) THE defendant No. 1 and 2 filed contesting written statement. Besides taking various legal and ornamental please, mainly contended that Abhilakh Mahto and Rajai Mahto were separate prior to cadastral survey but Parmeshwar Mahto and Ram Swaroop Mahto were joint and they remained joint till 1966. Swaroop @ Ram Swaroop was the karta and after his death, Munnilal Singh, plaintiff No. 1 became the karta. Although defendant No. 1 is elder to plaintiff No. 1. Ram Balak Mahto and Uchhant Mahto were also members of joint Hindu family. Uchhant Mahto died in jointness with Balak Mahto. Balak Mahto never executed gift deed in favour of Pitamabar Mahto. After death of Pitambar, Balak Mahto came in possession of the land of Rajai Mahto. Ram Swaroop Mahto and Parmeshwar Mahto were member of the joint Hindu family and they used to serve Balak Mahto. So Balalk Mahto desired to execute deed of gift of his share in favour of Parmeshwar Mahto and Swarop Mahto. However, Swaroop Mahto was the karta, therefore, he got executed the deed of gift in his name only. After gift deed, both the brothers came in joint possession of the gifted property. The gifted lands were blended in the joint lands. Parmeshwar Mahto died in the state of jointness with Ramswaroop leaving behind his sons, Ram Dihal and Ramdeo. They also remained in joint. Ram Dihal died issueless in the year 1967. Thereafter, the defendant No. 1 and 2 separated from the plaintiff in mess and residence and got their half share defined but the lands remained joint. The defendant No. 1 had incurred some loan, therefore, a suit was filed against defendant No. 1 by Sheobhajan Singh being Money Suit No. 515 of 1956. The plaintiff No. 1 being the karta instigated the defendant No. 1 to execute the deed of relinquishment (Ladabhi deed) in the garb of saving the gifted property. Accordingly, the defendant No. 1 executed a deed of Ladabhi to save the family property. Therefore, the Ladabhi deed and the sale deed dated 29.11.1956 are the farji sale deed and transaction. In fact plaintiffs and the defendant No. 1 and 2 remained joint upto year 1956. The defendants have got no objection, if the plaintiffs gave half share in the suit lands.