TARKESHWAR PRASAD Vs. NANHKU PRASAD SINGH

JUDGEMENT

(1.) These two appeals are by the two sets of defendants and arise out of the same judgment passed in title Suit No. 71 of 1949 decreeing the suit for partition instituted by the plaintiff-respondents. Both the plaintiffs and the defendants belong to the same family as will appear from the following genealogy: <FRM>JUDGEMENT_523_AIR(PAT)_1959Html1.htm</FRM> The suit property is a house in Mohalla Moharampur Bhauwar Pokhat within the Patna City Municipality bearing old holding No. 101 and new holding No. 123, Circle No. 14. Apart from Amar Singh, the other sons of Rajkumar Singh had no concern with the acquisition of the land over which the house stood, and, though the consideration for the purchase of the land was paid by Amar Singh, it belonged to him and all his three sons. Before the year 1915 Nanhku Prasad Singh was taken in adoption by Ramji Singh who had no issue. On 20-3-1915, a document, exhibit 1 was executed by (1) Suba Singh, (2) Foujdar Singh, (3) Balkeshwar Singh for self and as guardian of his minor son Deonath Singh, (4) Raghunandan Singh, (5) Kamaldhari Singh for self and as guardian of his minor son Kamta Prasad Singh (6) Amar Singh for self and as guardian of Baijnath Prasad Singh, son of his predeceased son Girdhari Singh. (7) Sonadhari Singh for self and as guardian of his minor son Tarkeshwar Prasad alias Daljit Singh and (8) Nanhku Prasad Singh. This deed is described as being a deed of agreement by way of relinquishment, but is alleged by the plaintiffs to be a deed of family arrangement, By this document it was acknowledged that half of the house in question was owned and possessed by Amar Singh, Sonadhari Singh and Baijnath Singh and the other half was owned and possessed by Nanhku Prasad Singh. On 20-5-1933, Nanhku Prasad and his minor son Sambhu Prasad filed a title suit being title Suit No. 33 of 1933 against Sonadhari, Tarkeshwar Prasad alias Daljit, Baijnath Prasad and Musammat Reshmi Kuer, wife of Amar Singh for recovery of a certain sum of money after adjustment of account. The plaint of that suit is exhibit A and a reference was made in this plaint to the house in question and it was stated that it belonged to both the plaintiffs and the defendants of that suit. On 16-9-1933, a written statement was filed in that suit by defendants 1 to 3, that is, by Sonadhari Daljit and Baijnath in which it was stated that the plaintiffs took in cash the proportionate price of the house in question in the life-time of Amar Singh and the house and the land appertaining to it entirely belonged to and were in exclusive possession of those defendants. This litigation ultimately came up to the High Court in F.A. No. 108 of 1937 which ultimately, on 9-5-1941, was disposed of on compromise. The compromise petition is exhibit 4. It appears that the question of title over the house in question was left open. On 17-9-1949, Nanhku Prasad Singh and his son Sambhu Prasad Singh instituted a suit for partition of the house in question claiming eight annas share therein. The present appeals arise out of this partition suit.

(2.) The suit was contested by defendants 1 and 2 who filed separate written statements, but their pleas are common. They pleaded inter alia (1) that the plaintiffs had no title over the house in question, (2) that whatever interest they had, they relinquished the same in favour of these defendants on receiving the proportionate price for the house (3) that the suit was barred by adverse possession and (4) that the suit was not maintainable unless court-fee was paid for declaration of title.

(3.) The trial Court overruled all the pleas taken in defence and held that the plaintiffs were entitled to a decree for partition of their eight annas share in the house in question. The suit was accordingly decreed. Two appeals have been filed against the judgment and the decree of the learned Subordinate Judge, one by defendant No. 1 which is F.A. No. 257 of 1951 and the other by defendants 2 to 7 which is F. A. No. 153 of 1951. Both the appeals have been heard together. Mr. Kaushal Kishore Sinha has advanced the main argument for the appellants in F.A. No. 257 of 1951 and Mr. Misra appearing for the appellants in F.A. No. 153 of 1951 has adopted that argument. Mr. L.K. Chaudhuri has argued the case for the plaintiff-respondents in both the appeals. This judgment will govern both of them.