JHAGRU NONIA Vs. BIPTI

JUDGEMENT

(1.) This second appeal has been preferred against the judgment and decree dated 12th September, 1985 passed in Title Appeal No. 115 of 1977 by Sri Kamla Prasad Sinha, 2nd Additional District Judge, Siwan whereby he has been pleased to set aside the judgment and decree dated 9-7- 1977 passed by M.A. Siddique, Subordinate not present in the village at the time of revisional survey operation and he had no knowledge of R. S. entry. The claim of the plaintiffs is that the plaintiffs have got 1/2 share in the suit property and as there was no partition between the heirs of Hiraman and the heirs of Sohan by metes and bounds, as such the necessity of filing of the suit arose.

(2.) Defendants 1, 3 to 6 and defendant No. 8 contested the suit and filed two separate written statements. Defendant Nos. 1, 3 to 6 contended that the common ancestor, Mahipat Nonia had three sons, Hiraman, Rajman and Sohan and not only two sons. All the three sons were separate in mess and property. Rajman had no son. Gulab Nonia used to attend him, serve him and manage his property. Rajman relinquished his interest in favour of Gulab, put the latter in possession of his land and got entries made in the record of rights during cadestral survey. The share of Gulab Nonia was, therefore, recorded as 2/3rd during cadestral survey and that to Chhatto Nonia as 1/3rd. Possession of the two co-sharers Gulab and Chhathoo was accordingly, recorded in khatian. During revision survey operation, similar entry was made in the name of Rajkumar, descendant of Gulab and Chhathu, son of Bacha Nonia. Raj Kumar died leaving behind his widow and daughters and daughter's son. On 7-6-41 the widow of Raj Kumar executed a deed of gift with respect to her property in favour of her daughter, Most. Bisani, defendant No. 2 and daughter's son Sitaram and Brahmchari, defendant Nos. 3 and 4, sons of her daughter Bipati Defendant No. 1, Defendant No.. 2 Bisani, subsequently, sold her land to different persons and purchasers were in possession. These defendants further pleaded that there was no unity of title and unity of possession. Nothing was joint. The suit was also barred by limitation and the same is fit to be dismissed.

(3.) On the basis of the pleadings of both the parties, the learned trial Court framed as many as five issues for determination which are as follows :-