RAM KUMARI Vs. JAGARNATH CHOUBEY

JUDGEMENT

(1.) This appeal by the plaintiff appellant is directed against the judgment and decree dated passed by Sri M.L. Chaudhary, Subordinate Judge, Garhwa, in Partition Suit No. 61 of 1981 dismissing the plaintiff's suit for partition of her half share in the suit property.

(2.) The plaintiff's case, inter alia, is that Govind Choubey and Parmeshwar Choubey held ancestral 'Muqarrari' interest in village Ranadih and Sonepurwa. Parmeshwar Choubey died long before survey and his entire interest devolved upon her heirs Shiv Dutta Choubey and Aklu Choubey. At the time of survey, their names were recorded under Khewat No. 13/1 of village Ranadih jointly with Govind Choubey. The plaintiff's further case is that a few years after survey, the three recorded persons i.e. Shiv Dutta Choubey, Aklu Choubey and Govind Choubey amicably partitioned all the property by virtue whereof Shiv Dutta Choubey and Aklu Choubey were allotted separate 'takhta'. In addition to the aforesaid ancestral interest, Shiv Dutta and Aklu Choubey purchased land through several sale-deeds and came in joint possession of the same. The plaintiff's case is that Aklu Choubey died in the month of October, 1942 and after his death, his interest devolved upon his widow Kaushalya Kunwar under the Hindu Women's Right to Property Act, Kaushalya was a 'parda-nashin' lady and, therefore, she left the management of her shares into the hands of Shiv Dutta Choubey, who managed the same till his death which took place in the year 1965. Shiv Dutta Choubey, in the vesting of the Zamindari, filed returns in his own name for the village Ranadih and for the village Sonepurwa, returns were filed in the name of his son Jagarnath Choubey. The plaintiff's further case is that Kaushalya Kunwar died in the month of 'shrawan' in the year 58 leaving behind the plaintiff as her only daughter who held interest of her mother Kaushalya Kunwar. It is alleged that the plaintiff was married at the age of 17 years and was living in her Sasuraal and Shiv Dutta Choubey till his death, and thereafter his son, used to send produce of the land to the plaintiff. The plaintiff required money for the marriage of her daughter and for that, she decided to sell some land, which she inherited from her mother. When the husband of the plaintiff approached defendant No. 1 for giving documents for this purpose, he was told that he had no papers concerning the land. So, suspicion arose in the mind of the plaintiff and thereafter, the plaintiff's husband made inquiries in the revenue office and came to know that the land had been assessed in the name of the defendant No. 1 for both the aforementioned villages. The plaintiff thereafter repeatedly demanded partition from the defendants and the latter failed to do so ; hence the suit.

(3.) The defendant No. 1 contested the suit by filing written statement denying and disputing each and every allegation made in the plaint. Besides other pleas the dates of death of Aklu Choubey and Kaushalya have been denied. According to the defendants, Aklu Choubey died in 1940 and not in the year 1942 and after his death, his interest devolved upon Shiv Dutta Choubey by survivorship. It is stated that no interest of Aklu Choubey devolved upon Kaushalya. It is also denied that Kaushalya died in 1958. According to the defendants, Kaushalya died in the year 1944 and after her death, the plaintiff who was a minor, was brought up by Shiv Dutta Choubey and her marriage was also performed by him. The defendant's further case is that Shiv Dutta Choubey during his life separated his sons Jagarnath and Bishwanath Choubey and in their shares, land of Sonepurwa was allotted and he kept with him the land of village Ranadih and, accordingly, after the vesting of Zamindari, returns were filed and assessed in their names. Shiv Dutta Choubey died in 1965 leaving behind Jagarnath and Bishwanath Choubey who inherited the properties. After two years of the death of Shiv Dutta Choubey, his son Bishwanath Choubey died issueless. So the entire interest of Shiv Dutta Choubey devolved on Jagarnath Choubey, the defendant No. 1. Kaushalya was not alive at the time of filing of the return and the plaintiff was only 10 years of age at the time of her mother's death. In this way, defendants denied that there is any unity of title or possession of the plaintiff over the suit property. The defendant Nos. 2 to 5 who are sons of defendant No. 1, by filing separate written statements supported the case of the defendant No. 1.