PHULIA DEVI Vs. JAGASSI DEVI

JUDGEMENT

(1.) THIS Appeal has been preferred under Section 100 of the Code of Civil Procedure against the concurrent findings of both the Courts below in Title Suit No. 4 of 1976.

(2.) THE appellants as plaintiffs filed the above mentioned suit before the Munsif at Chatra for partition of their half shares in the suit property appertaining to Khata No. 10 fully described in the schedule at the foot of the plaint. According to the plaintiffs, the lands were raiyati lands and were recorded in the names of two brothers, namely, Lakshman Bardi and Laliya Bardi sons of Gyani Bardi and they had equal shares in the lands at Khata No. 16 and it was recorded specifically that they have BIHSSA BARABAR during the last survey operations. Plaintiffs are the defendants of Laliya Bardi while the defendants are the descendant of Lakshman Bardi. Lakshman Bardi died about 35 years ago leaving three sons, namely, Sohar Bardi, Lato Bardi and Barho Bardi and these sons are the defendant Nos. 1 to 3. The minor sons of the defendant Nos. 1 to 3 had also been made parties while Barho Bardi was issueless. Lato Bardi has no son and has only a daughter and she has been made as defendant No. 5. Laliya Bardi i.e., the predecessor of the plaintiffs died about 25 years ago and left behind two sons Bandhan Bardi and Mohan Bardi. They are plaintiff Nos. 1 and 2 other plaintiffs are the sons of the plaintiff Nos. 1 and 2. It was the case of the plaintiff that after the death of Lakshman Bardi, his sons and other co sharers and recorded tenant Lalyia Bardi amicably divided the lands to the extent of half and half, according to the convenience, but without dividing by metes and bounds. Laliya Bardi remained in continued possession of his land which fell to his share and after his death his descendants i.e., the plaintiffs were in possession and the other half remained in possession of the defendant Nos. 1 to 4 while defendant No. 1 had gifted away his share to his daughter i.e. .defendant No. 5, by a Gift deed, which has been marked as Ext. E in the case. When there was no document of partition, the plaintiffs found difficulty in paying rent as the lands were not separated and there was also difficulty in improving of the shares of the land of the plaintiffs and as such they requested the defendants for dividing the lands by metes and bounds and to prepare a document of partition but the same was deferred with various pretext, as such ultimately the plaintiffs 1 to 5 filed the suit for partition of their half share.

(3.) THE geneology had been given by the defendants in their written statement, which has also been mentioned in the Appellate Court's judgment at para 4 and the said geneology had not been denied from either of the parties. In the original Court, both parties adduced evidences both oral and documentary and also the Gift deed, Ext.E. was proved from the side of the defendants while the purchase deed of the plaintiffs from Banshi Bardi in Khata No. 10 had also been proved as Ext. 2. After hearing the parties and on scrutiny of the evidence on record, the Munsif, Chatra dismissed the suit holding that the plaintiffs were never in possession of the suit property and practically they had shifted to Khata No. 10 and the whole land remained with Lato Bardi, the defendant No. 1 and even if the plaintiffs' remained the share holder in the suit Khata, but they had been ousted and as such Lato Bardi, defendant No. 1 acquired title over the suit property by adverse possession and the same being gifted to defendant No. 5. The plaintiffs without coming up for setting aside that deed of gift or challenging the same, cannot come up with a partition suit in the garb of declaration of title and hence the suit was dismissed.