LOHRI KUMHAR Vs. RAM PRASAD KUMHAR

JUDGEMENT

(1.) THIS Letters Patent Appeal, by the plaintiffs -respondents is directed against the judgment and decree of reversal, arising from a suit for partition.

(2.) A partition suit (Partition Suit No. 132 of 1970) was filed on behalf of Lohari Kumhar and his son Bishnu Kumhar. Lohari Kumhar was described in the plaint as a lunatic under the care of his wife. Impleaded as defendants were (i) Gardhu Kumhar, father of plaintiff no. 1, (ii) Ram Prasad and (iii) Pun Kumhar, the other two sons of Gardhu Kumhar and (iv) Upendra, the son of Ram Prasad. According to the plaintiffs, the properties of which partition was sought were the ancestral properties of Gardhu Kumhar in which Lohari Kumhar and his son had their respective shares. Gardhu Kumhar had become very old and infirm; Lohari had lost sanity and in those circumstances, Ram Prasad had become the de facto karta. He was neglecting and mistreating Lohari and his son, and hence, the need for partition. The properties of which partition was prayed for were described in Schedule I to the plaint. These were same lands with the total area of 1.21 acres under five different Khatas, situate in village Sherghati, Gola Bazar, P.S. -Sherghati, thana no. 762 touzi no. 4548. The defendants resisted the claim for partition by the plaintiffs on the plea that the suit properties were not ancestral but were the self -acquired properties of Gardhu Kumhar. During his lifetime, none of his sons had any share in those properties and Gardhu had given the entire suit lands to Upendra, son of Ram Prasad, in gift.

(3.) MR . Sukumar Sinha, learned Counsel appearing on behalf of the appellants (respondents -plaintiffs) submitted that in a suit filed subsequently by Gardhu Kumhar (being Title Suit No. 194 of 1962/169 of 1963) the Courts had found that at least some of the suit lands were not the self -acquired property of Gardhu but were his ancestral property and that finding in Title Suit No. 194 of 1962/169 of 1963 was maintained right upto this court and finally upto the Supreme Court. Mr. Sinha contended that the finding in Title suit No. 194 of 1962/169 of 1963 clearly operated as res judicata against the defendants and barred them from raising the plea that the suit lands were self -acquired properties of Gardhu.