RAM PRASAD MAHTO Vs. DEVENDRA MAHTO

JUDGEMENT

(1.) The plaintiff is the appellant in this first appeal, which has been filed against the judgment and decree, dated the 30th June, 1976 passed in a suit for partition, by the 3rd Addl. Subordinate Judge, Siwan. The plaintiff-appellant filed a suit for partition claiming 2/3rd share in the suit property fully described in Schedules 1 and 2 to the plaint. The case of the plaintiffs, in short, is that one Fakir Mahto had three sons, namely, Sheo Shankar Mahto, Ratan Mahto and Lakhan Mahto. Sheo Shanker Mahto had two sons, namely, Ramrup Mahto, plaintiff No. 1 and Ram Prasad Mahto plaintiff No. 2. Ratan Mahto had one son and one daughter, who are defendants No. 1 and 2 in the suit. Similarly, Lakhan Mahto had one daughter, namely, Anupi Devi, defendant No. 3, in this case. The genealogical table mentioned in the plaint is not disputed. What is disputed is only th;at Anupi-Devi defendant No. 3, is not the daughter of Lakhan Mahto. It is stated that Fakir Mahto and his co-sharers had 6 Bighas, 10 Kathas and 13 Dhurs of land in Village Sani-Basantpur. It is alleged that there had been a partition in the family by metes and bounds before the revisional survey and the lands mentioned in Schedule 1 to the plaint fell id the share of Fakir Mahto. It is further alleged that Fakir Mahto, after partition, acquired certain lands in Village Jagdishpur, District Champaran out of the joint family funds, which are mentioned in Schedule 2 to the plant. It is also alleged that after the death of Fakir Mahto, his three sons inherited his lands and came in possession thereof jointly. According to the plaintiff, all the co-sharers had partitioned among themselves, but the agricultural lands remained in jointness. It is further alleged that some lands were being cultivated jointly and some lands separately according to their convenience. It is further alleged that after the death of Sheo Shankar Mahto, the plaintiffs acquired the lands of their father, Sheo Shankar Mahto. Similarly, defendant No. 1 inherited the lands of his father, Ratan Mahto. and after the death of Lakhan Mahto, his daughter, namely. Anupi Devi, who is defendant No. 3, also came in possession of the lands of the share of her father, Lakhan Mahto, and thereafter, she sold her share to the plaintiffs and, accordingly, the plaintiffs are entitled to 2/3rd share in the landed property of the family. It is alleged that the ancestral house belonging to the parties fell down and, thereafter, the plaintiffs sold the land to Hussaini Mahto and took other land in lieu thereof over which they have constructed their house and defendant No. 1 had also constructed his house in schedule 2 land. The plaintiffs mostly reside in Village Basantpur. They go to Village Jagdishpur to divide the produce of the land. Since the defendant No. 1 usually resides in Village Jagdishpur, he often comes to Village Basantpur to get his share in the produce of the lands. When they felt difficulty in cultivating the lands jointly, they demanded partition. Defendant No. 1 refused to concede to their requests as a result of which the plaintiffs filed the suit for the reliefs, as stated above.

(2.) Defendants No. 1 and 2 appeared and filed a joint written-staternent. Apart from taking the usual defence, it is stated that the suit is not maintainable in absence of necessary parties inasumuch as one Husaini Mahto, who has purchased the land of Khata No. 144 from the plaintiffs and other settlees of the lands of Khata No. 458 have not been made parties to the suit. It is alleged that the suit is bad for partial partition. It is further alleged that wrong plot numbers have been mentioned in the two schedules to the plaint. According to the defendants, Lakhan Mahto died in the life-time of his father, Fakir Mahto, in the state of jointness and Lakhan Mahto had died issuless. Besides, wife of Lakhan Mahto had pre-deceased her husband and further defendant No. 3, Anupi is not the daughter of Lakhan Mahto; rather, she is the daughter of Sheo Shankar Mahto and, as such, she has no right, title and interest and the document executed by her during the pendency of the suit in favour of the plaintiffs is a forged and fabricated one. It is further alleged that the lands pertaining to Khata No. 458 of Village Jagdishpur measuring 7 Bighas, 14 Kathas and 2 Dhurs were taken in settlement by Ratan Mahto in the name of his father. Fakir Mahto, and the said lands were auction-sold in execution of a rent decree and were purchased by the ex-landlord, who took delivery of possession of the same subsequently after separation in the family. Defendant No. 1 took settlement of the lands pertaining to various plots out of his self income and came in possession thereof on payment of rent to ex-landlord as well as the State of Bihar. According to the defendants, as stated above, Lakhan Mahto died in the life time of his father and Fakir Mahto partitioned the lands between Ratan Mahto and Sheo Shankar Mahto and according to the partition, Sheo Shankar Mahto was alloted the entire lands of Village Basantpur and Ratan Mahto was alloted the lands of Village Jagdishpur and, accordingly, the parties are coming in possession of the lands of their respective share since 1340 Fasli. Anupi, defendant No. 3, is not the daughter of Lakhan Mahto but she is the daughter of Sheo Shankar Mahto. She has right, title and interest in the disputed lands, and the alleged sale deed executed by her during the pendency of the suit is a forged and fabricated document. Sheo Shankar Mahto left the village for ever, as he became 'Sadhu'.

(3.) On the basis of the aforesaid pleadings, the Court below has framed as many as six issues out of which issue Nos. 3 and 4 are: