RAM PRASAD RAUNIAR Vs. BISHWANATH PRASAD RAUNIAR

JUDGEMENT

(1.) This is an appeal by defendants 1, 8 and 11 and the heirs of deceased defendant No. 9. The suit was filed in the Court of the Munsif, Buxar, by respondent No. 1 for partition by metes and bounds of his eight annas share in the suit properties. The properties in suit comprise only two plots of land, viz., Survey Plots Nos. 1176 and 1533, measuring, respectively, 17 and .34 acres, situate at mauza Pandey Patti within Buxar Police station. The trial Court had decreed the suit for partition. The lower Appellate Court, where appeal had been preferred by original defendants 1, 8, 9 and 11, namely, the first three appellants and the predecessor-in-interest of appellants 4 to 9 of this Court, has dismissed the appeal on the ground of abatement. Being aggrieved by the judgment and decree dismissing the appeal on the ground of abatement, the appellants have come to this Court.

(2.) The short facts relevant for the purpose of disposal of the appeal are these. The case of plaintiff respondent No. 1 was that the aforesaid two plots appertaining to khata No. 109 were jointly recorded in the cadastral survey record-of-rights in the names of the plaintiff's father and one Parmeshwar, who is said to have been the father of Jagarnath, Hari. Ramanandan and Rama. It was asserted in the plaint that the interest of the two joint owners, namely, the plaintiff's father and Parmeshwar aforesaid was eight annas each. Defendants 1 to 7 were the heirs of Jagarnath. Hari and Ramanandan whereas defendant No. 8 was Rama aforesaid. According to the plaintiff's case, he was entitled to the eight annas moiety, while the remaining eight annas belonged to defendants Nos. 1 to 8. Defendant No. 9 was alleged to be a purchaser from defendant No. 8 by two registered sale deeds one in respect of 02 3/4 acre and the other in respect of 18 dhurs in survey plot No. 1176. Defendant No. 10 likewise was said to be a purchaser of a portion from out of the share of some of the defendants other than defendant No. 8. Defendant No. 11 was said to have purchased some share and was added subsequently in the suit as a party defendant and was not impleaded on the allegation that he was a purchaser of a portion of both the plots from some of the other co-sharers after the filing of the suit. Defendants Nos. 1, 8, 9 and 11 filed separate written statements, and the case of the contesting defendants was that instead of eight annas share claimed by the plaintiff, actually he was entitled to one-third moiety in the suit properties, one-third share belonged to defendants Nos. 1 to 7 and the remaining one-third belonged to defendant No. 8. The three purchasers, viz., defendants Nos. 9 to 11 claimed to have rightly purchased the land from the suit plots from the different defendants. Their further case was that partition on the basis of one-third share had been effected long ago and that therefore, a fresh suit for partition was not maintainable.

(3.) The trial Court framed a number of issues. The only three issues which are being mentioned are relevant for the purpose of disposal of this appeal. They are issues 2, 3 and 4. Issue No. 2:--