NARSHING MISHRA Vs. RAJENDRA MISHRA

JUDGEMENT

(1.) APPELLANTS ,being aggrieved by the judgment and decree dated 25th of June, 1998 passed by a learned Single Judge of this Court dismissing the First Appeal No. 818 of 1978 and affirming the judgment and decree dated 11th of September, 1978 passed by the trial court in Title Suit No. 650/132 of 1974/1978, have preferred this appeal under Clause 10 of the Letters Patent.

(2.) DURING the pendency of the first appeal aforesaid the original plaintiffs (appellant nos. 1, 2 and 3 in the first appeal) died and the present appellant nos. 1 to 14 were substituted in their place being their legal representatives. Defendant No. 3 also died during the pendency of the first appeal and his legal representatives were also substituted in his place. Appellant No. 20 is original defendant no. 4 himself. Original defendant nos. 1 and 2 (Respondent Nos. 1 and 2 herein) died during the pendency of this appeal and the present respondents were substituted in their place being their legal representatives. Similarly appellant nos. 1 and 16 also died during the pending of this appeal. The legal representatives of appellant no. 1 were already on record whereas the legal representatives of appellant no. 16 were substituted in his place. Original plaintiffs filed Title Suit Nos. 650/132 of 1974/1978 seeking partition of their 1/8th share out of the suit property measuring an area of 11 bighas 2 kathas and 14 dhoors pertaining to Khata No. 115 situate at Village -Hembardaha, Pargana Kuari, P.S. -Kuchaikote, District -Gopalganj, which are described in Schedule -l of the plaint.

(3.) SHORN of details, plaintiff 'scase in brief is that the suit land described in Schedule -l of the plaint was joint property of Ramhit Missir, Ram Sewak Missir, both sons of Rameshwar Missir, Deoki Missir son of Doulat Missir, Bishwanath Missir son of Hira Missir and Indradeo Missir son of Ram Prasad Missir, their common ancestor being Radha Missir. According to the plaintiff - appellants, the suit property stood recorded in the names of their ancestors in the C.S. and R.S. khatians in defined shares. Further contention of the plaintiff is that the recorded co -sharers and their descendents have even sold part of their shares to the ancestors of the contesting defendant nos. 1 and 2 by sale deeds dated 22.7.1918 and 14.9.1922. The claim of the plaintiffs is that since they felt inconvenience in cultivating the suit property jointly with the contesting defendants, they wanted partition by carving out their shares out of the suit property. Since defendant nos. 1 and 2 did not agree, the present suit was filed by the plaintiffs.