TARAK NATH SINGH D Vs. DEENA NATH SINGH

JUDGEMENT

(1.) This second appeal has been preferred against the judgment and decree dated 23.3.1990 passed by Sri Kailash Bihari Verma, 1st Additional District Judge, Saran at Chapra, in title appeal No. 49 of 1983 whereby he had affirmed the judgment and decree dated 7.3.1983 passed by Sri Surendra Kumar Sinha, 3rd Additional Sub-Ordinate Judge, Chapra, in partition suit No. 6 of 1976.

(2.) The case of the plaintiff-respondent is that one Nakched Singh was the common ancestor. He had three sons; Ramdahin Singh, Padarath Singh and Mukhlal Singh, Ramdahin Singh died unmarried in the state of jointness before the revisional survey. In the year 1921, the two remaining brothers, namely, Pradarath Singh and Mukhlal Singh separated. Thereafter, Padarath Singh died in the year 1943 leaving behind his widow Hikayat Kuer and a daughter Simrekha Kuer. After the death of Padarath Singh, his widow Hikayat Kuer came in possession of the properties left by Padarath Singh. In the year 1945, Most. Hikayat Kuer also died leaving behind her daughter Simrekha, who inherited the properties of her father left by him and after the death of Simrekha Kuer the plaintiff being her only heir inherited the properties. Further case of the plaintiff is that his mother Simrekha Kuer executed a deed of gift on 9.11.1971 in favour of defendant No. 3 through defendant No. 4. In the year 1972, the mother of the plaintiff died leaving behind her, the plaintiff as her only heir who came in possession of the properties left by his mother. Further case of the plaintiff is that about 25-26 years back Mukhlal Singh (another brother of Padarath Singh) died leaving behind him his only son Mukhtar Singh and seven daughters who all inherited the properties left by Mukhlal Singh and, accordingly, they came in possession of the properties left by Mukhlal Singh. Later on, Mukhtar Singh also died and thereafter his two sons, namely, Tarak Nath Singh and Manokamna Singh (defendant Nos. 1 and 2) inherited the properties left by him and came in possession thereof. Further case is that although Mukhlal Singh and Padarath Singh had separated long-long ago but no partition had taken place by metes and bounds and the plaintiff used to pay rent of the lands with regard to her half share through Mukhtar Singh and Mukhlal Singh. But, after the death of Mukhtar Singh and Mukhlal Singh, the defendant No. 1 turned to be dishonest and he started obstructing in the joint possession of the plaintiff over the suit land and, hence, the necessity of filing of this suit arose.

(3.) The case of the defendants-appellants, in short, is that Padarath Singh and, Mukhlal Singh were own brothers. Padarath Singh died unmarried about 50 years back in the state of jointness. Later on, the defendants amended the written statement and said that Padarath Singh died leaving behind his widow Hikayat Kuer but it was denied that Simrekha was her daughter. It has been stated in the written statement that there is no unity of title and unity of possession with respect to the suit land as the plaintiff has got no right, title and interest in the suit property. He has filed this suit with dishonest intention at the instance of one Sushil Kumr Singh, defendant No. 4, who is a rich and influential man of the village and wants to grab the land of the defendants. It has been stated that the defendant No. 4 had approached the defendants to part with the land but when the defendants refused to part with the lands he became annoyed and got this case instituted. It has further been stated in the written statement that the plaintiff is not related to, the family of the defendants and the genealogical table given by the plaintiff is wrong. The plaintiff is not the daughter of Simrekha Kuer. It has also been stated that Simrekha has not executed any deed of gift in favour of the defendant No. 3 through defendant No. 4 and if any such deed of gift was executed it has got no legal effect. On the basis of the above pleadings the defendants-appellants have prayed to dismiss the suit.