AWADHESH SINGH S/O LATE RAM NANDAN SINGH RESIDENT OF VILLAGE YASOIYA Vs. RAMASHRAY SINGH RESIDENT OF VILLAGE YASOIYA, P.O. AURANGABAD

JUDGEMENT

(1.) The instant appeal is directed against the judgment dated 11.10.2012 and decree dated 19.02.2013 passed by Sri Ramrang Tiwary, the then Sub-Jude Ist, Aurangabad in Partition Suit No. 01. of 2009 whereby and whereunder the suit was dismissed on contest.

(2.) The Partition Suit No. 01 of 2009 was filed by the appellant against respondents no. 1 to 4 claiming therein decree for partition of half share in the properties of his grandfather late Ramjatan Singh who died leaving behind two sons namely, Ramnandan Singh and Nawrang Singh. The plaintiff is the son of Ramnandan Singh whereas the defendants-respondents no. 1 to 4 are the sons of Nawrang h. It is stated that one Kashi Singh was the common ancestor of both the parties having lands in village Yasoiya, Dhabaul and Bharatpur. He was Kahtiyani Raiyat of cadastral survey, who died leaving behind his five sons in jointness, namely, Ishwar Dayal Singh, Parmeshwar Singh, Bahadur Singh, Ram Khelawan Singh and Ramjatan Singh. Ishwar Dayal Singh, Parmeshwar Singh, Bahadur Singh and Ram Khelawan Singh died issueless in jointness with Ram Jatan Singh and Ram Jatan Singh became the sole surviving heir who died leaving behind two sons Ramnandan Singh and Nawrang Singh.

(3.) The defendants appeared and filed the written statements. Apart from the ornamental objections,they contended that the suit is barred by law of adverse possession and bad for misjoinder and non-joinder of necessary parties. The wife of Ramnandan Singh has not been made party and in her absence the suit cannot proceed. There is no unity of title and possession. There was partition in the year 1950-51 between Ram Khelawan Singh and sons of Ramjatan Singh namely, Ramnandan Singh and Nawrang Singh and the Taktha allotted to Ram Khelawan Singh was sold in favour of sons of Nawrang Singh and subsequent thereto the plaintiff filed Partition Suit no. 38 of 1966 wherein the compromise was entered in between the parties and compromise petition was filed in the court wherein the lands purchased by defendants from Ram Khelawan Singh were allotted in the Thakta of the defendants and compromise has been acted upon. Even in land acquisition cases, on the basis of that compromise, awards were granted and the plaintiff has sold the lands on the basis of that compromise. The plaintiff has received the amount of award accordingly and the step mother of plaintiff has also received awarded compensation but she has not been made party. In Partition Suit No. 38 of 1966 Binda Devi, the mother of the plaintiff, was also allotted separate schedule and out of that land the plaintiff has purchased some of the lands from Binda Devi in the name of his wife Roshila Devi through Registered Sale Deed dated 27.11.1982 wherein there is clear recital that the land which has been sold has been acquired from partition suit no. 38/66, not only this, the son of the plaintiff namely, Arvind Singh filed Partition Suit No. 106 of 1995 / 90 of 1997 with respect to the land allotted in the schedule of Partition Suit No. 38 of 1966 to the plaintiff together with the land purchased from Binda Devi in the name of the wife of the plaintiff Roshilaa Devi and the land covered by land acquisition case was excluded. The suit is also bad for partial partition since the land of khata no. 93 survey plot no. 443 area 5 acres 6 decimal and in the same khata plot no. 496 area 8 acres 58 decimal situated in village Yasoiya has been intentionally excluded in the plaint which is evident from cadastral survey khatian and schedule B of compromise petition filed in Partition Suit No. 38 of 1966. The plaintiff with dishonest motive has excluded the lands which he has also sold and the lands which have already been acquired by the Government under several land acquisition cases and included the self acquired properties of these defendants and by their ancestors in the plaint which is evident from schedule I of the compromise petition of Partition Suit No. 38/66. Revenue records are running according to the schedule of Partition Suit No. 38/66 in the name of the parties and accordingly, the names have been mutated and separate rent receipts are being granted. There is no unity of title and possession between the parties and as per compromise of Partition Suit No. 38/66, the parties are in separate exclusive possession. Unfortunately, Partition Suit No. 38/66 was dismissed in default but on the basis of compromise filed in that partition suit, the parties came in separate possession and the compromise was acted upon by all the parties. The suit of the plaintiff is not maintainable and is fit to be dismissed as there was no cause of action to file the suit.