RAM NARAIN PRASAD SAH Vs. RAMJI PRASAD SAH

JUDGEMENT

(1.) This application in revision by the plaintiff is directed against an order passed on defendants" petition dated 26-8-54 simultaneously with and in the judgment itself, which the Court passed on 19-11-54, under issue No. 19 in Partition Suit 191 of 1950 and M. S. 14 of 1951, both of which were heard together by Mr. K. B. Verma, 1st Additional Subordinate Judge at Motihari.

(2.) This application raises an unusual question, which is of rare occurrence. The plaintiff brought two suits against the defendants. The first suit was a partition suit, which he brought against his brother, defendant 1, and his sons, for partition of his 8 annas interest in the properties, and for rendition of accounts. The plaintiff's case was that he and the defendants remained joint till Bhado 1352 Rs., which corresponds to August, 1942, when they separated in mess, and some movables were divided, but some other movables remained joint, and the immovable properties were not partitioned and they remained joint. The plaintiff's further case was that ail the family documents concerning money-lending business, cultivation etc., remained with defendant 1, and he had realised various debts, as given in the plaint, and was evading sending account of the same to the plaintiff. The estimate of the plaintiff was that the defendants had realised about one lac of rupees. The plaintiff, therefore brought the partition suit, claiming half share in the properties in question, and also prayed for directing defendant 1 to render accounts from 1349 Fs. and also for a decree for partition of the standing and the future crops. The second suit was a money suit for contribu-tion. This suit the plaintiff brought against his brother, defendant 1, only. In this suit the plaintiff's case was that the defendant was liable to pay various amounts after partition, which he did not pay, and the plaintiff was compelled to pay the same, and as such the plaintiff brought the suit for contribution and claimed the amount paid fry him from defendant 1 with interest. The two suits were tried together, and on the pleadings of the parties in the two suits various issues were framed; one of them was issue No. 19, Which was: "To what relief, if any, is the plaintiff entitled?"

(3.) During the pendency of the aforesaid partition suit an application was made for appointment of a receiver in respect of the disputed properties, and this matter was compromised between the parties, and by an agreement between them it was decided on 15-9-52 that the plaintiff will be put in possession of all the lands in suit, excepting certain lands mentioned in the written statement of defendant I, and the plaintiff in lieu thereof shall deposit a sum of Rs. 22,837 per year, as half share of the produce of the land, which belonged to the defendants. It was further agreed that the plaintiff shall come in possession of the properties on the 1st of Baisakh 1350 Fasli, corresponding to 31-3-53. There were other conditions also, but they are not material.