GANESH MAHTON Vs. RUKMINI DEVI

JUDGEMENT

(1.) This appeal has been filed by the defendant first party. It arises out of a suit instituted by the plaintiffs for declaration of their title to and for confirmation of their possession of .02 acre of land out of homestead plot No. 5550 of Mouza Rukhai, Tola Babhan Than, which had an area of .09 acre. In the alternative, the plaintiffs had also asked for a decree for recovery of possession. The plaintiffs had also asked, in the alternative, as a last resort, for a decree for Rs. 750 against their vendors, impleaded as defendants second party. The trial court had decreed the suit and had given a decree for confirmation of the plaintiffs' possession. On appeal by the defendant first party, the decree passed by the trial court has been affirmed with a modification. The plaintiffs' title has been accepted and in place of a decree for confirmation of possession, a decree has been passed in favour of the plaintiffs for joint possession. It has further been held that the plaintiffs are entitled to get separate possession of the property purchased by them after partition.

(2.) The facts are as follows:--The plaintiffs alleged that one Jhaman Mahton of Babhan Than had two sons named Bhattu Mahton and Hittu Mahton alias Hitnarain. The properties of Jhaman had come to his sons and they had been recorded jointly in the survey record of rights. Bhattu had two sons named Ganesh Mahton, defendant No. 1 (the appellant in this appeal) and Shri Mahton defendant No. 3 Hittu was married to mosst. Pokhno Kuer daughter of Narain Choudhary of village Bhashmi Bigha. As Narain Choudhary had no other issue except this daughter, he had executed a deed of gift in respect of his properties at Bashmi Bigha in favour of his daughter, in 1940. As Hitnarain had no issue, Siri used to live at Bhashmi Bigha with Mosst, Pokhno Kuer, with his family. In due course, Bhattu and Hittu died and Ganesh and Siri came in possession of all the properties of Jhaman in Tola Babhan Than. Thereafter, Mosst. Pokhno also died, leaving' Ganesh and Siri as her heirs. Thus Ganesh and Siri came in possession of the properties of village Bhashmi Bigha also. It was alleged that there was a partition between Ganesh and Siri about six years before the institution of the suit, by which Siri got the house and the land of village Bhashmi Bigha and 1.55 acres of culturable land and .04 acre of homestead land from the north of plot No. 5550 in village Rukhai. This property has been described in Schedule 3 of the plaint. It was said that Ganesh got 3.42 acres of land in Tola Babhan Than, including .05 acre of homestead land of plot No. 5550. This property has been described in Schedule 4 of the plaint. It was alleged that Siri Mahton sold .02 acre out of .04 acre of homestead land of plot No. 5550 to the plaintiffs by a registered sale deed dated the 19th November, 1953. This land has been described in Schedule 5 of the plaint. In this litigation, the contesting parties are not really concerned with another sale said to have been made by Siri of .02 acre of land of plot No. 5550 to the pro forma defendants, mentioned in Schedule 6 of the plaint. The plaintiffs alleged that they had come in possession over the disputed land purchased by them from Siri Mahton and there was interference with their possession for which this suit had to be instituted.

(3.) The suit was contested by defendant No. 1, who was the defendant first party. The substance of this defendant's case was as follows: It was contended that Siri Mahton, defendant No. 3, had no concern with the family of Jhaman Mahton. Bhattu was said to have one son named Ganesh, The story of partition set up by the plaintiffs between Ganesh and Siri was denied. According to this defendant, Siri Mahton, defendant No. 3, had been falsely set up to be a member of this family. The plaintiffs' case that Siri Mahton had put the plaintiffs in possession of the disputed portion of plot No. 5550 was denied. Thus, the plaintiffs' suit was contested.