JAI KISHUN RAI Vs. NANDU RAI

JUDGEMENT

(1.) HEARD learned counsel for the appellants and learned counsel for the respondents.

(2.) THIS miscellaneous appeal has been filed on behalf of the plaintiff - appellants against order dated 30.11.2005, by which the learned Additional District Judge, 8th Court, Muzaffarpur disposed of Title Appeal No. 19 of 1993 by a common judgment and remanded the matter to the trial court for fresh consideration after framing further issues. Title Suit No. 110 of 1986 was filed by the plaintiff -appellants for partition of their share in the suit properties and also for declaration that the sale -deed dated 12.7.1984 executed by Jainarayan Rai with respect to Schedule -Ill land was forged, fabricated brought into existence after his death. The said suit was decreed by the learned Subordinate Judge, 2nd Court, Muzaffarpur, by judgment and decree dated 15.4.1993. Respondent No. 1 of the instant miscellaneous appeal filed Title Appeal No. 19 of 1993 challenging the aforesaid judgment and decree of the trial court and the said title appeal was heard alongwith another Title Appeal No. 20 of 1993 and was disposed of by the impugned order dated 30.11.2005 remanding the case to the trial court with the following directions: - "So I find from the pleading of the parties and also from the evidence of all the parties that Jhapsi Devi (P.W. 15) appeared as witness of plaintiff and she is daughter of Ganpat Rai who was admittedly son of Fatinga Rai, the common ancestor of both the parties. It also appears that none of the parties have challenged her parentage, as such branch of Ganpat Rai is not extinct. She is neither be made plaintiff or defendant in the suit. In my view, since branch of Ganpat Rai is alive, it is to be examined whether she is necessary party in the suit or not. It is also to be examined whether the suit is hit by non -joinder of necessary party."

(3.) LEARNED counsel for the appellants challenges the aforesaid order of the learned lower appellate court stating that no doubt Fatinga Rai was the common ancestor of both the parties but his heir, namely, his son Ganpat Rai transferred all his shares and interest in the suit properties to the plaintiffs by registered deed of gift and hence his daughter Jhapsi Devi had no interest or share left in the suit property. He further submits that Jhapsi Devi herself appeared in the suit as P.W. 15 and stated that she was the daughter of Ganpat Rai and said Ganpat Rai had transferred his entire share and interest in the suit properties in favour of the plaintiffs. The said deed of gift executed by Ganpat Rai in favour of the plaintiffs was not challenged by anyone by a separate suit and the daughter of Ganpat Rai herself accepted the same as her father, the executant of the deed, had died and had not claimed any interest. 18/4/2014 Page 37 Equivalent Citation:2008 -PLJR -1 -773