BRAHAMDEO RAI Vs. NAGINA RAI

JUDGEMENT

(1.) This appeal is directed against the judgment and decreed dated 25th February, 1971 and 24th March, 1971 respectively passed in T. S. No. 43 of 1967 which had been filed for partitioning the lands described in several schedules of the plaint and for allotting l/3rd share in the entire lands to the plaintiffs.

(2.) The case of the plaintiffs-respondents is that the common ancestor of the parties, had Ramauter three sons, namely, Raghu Nandan Rai, Bhabani Rai and Raghunath Rai. The plaintiffs are the SODS of Bhawani Rai, defendants first party are the descendants of Raghu Nandan Rai and defendants second party are the descendants of Raghunath Rai. On the basis of this genealogy, the plaintiffs claimed l/3rd share in the entire lands which were the subject mattter of the partition suit. The defendants-first party contested the suit on several grounds. The case of the defendants first party is also that most of the lands in question were the self acquired property of the branch of Raghunandan Rai.

(3.) When the argument advanced on behalf of the appellants was heard, at length, the learned counsel appearing on behalf of Respondent No. 6 (Nathuni Devi) raised a technical point to the effect that the present appeal has abated under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragementation Act, 1956 (hereinafter to be referred to as 'the Act'). The learned counsel appearing on behalf of the appellants and the learned counsel appearing on behalf of the respondents were heard on merit of the appeal. Several questions viz. whether there was severance of joint statns of joint family and which properties were itself acquired properties 'arose during the course of the arguments advanced on behalf of all the parties. To my mind it appears that if the appeal stands abated, then, it would be futile to discuss the remaining points raised in the appeal. I would, therefore, like first to decide the point raised on behalf of the learned counsel for the respondent No. 6 that the present appeal stands abated. If this contention of the learned counsel appearing on behalf of Respondent No. 6 is accepted, then there would be no necessity to give findings on the other points raised on behalf of the parties to this appeal.