UMESH CHANDRA Vs. KAPILDEO NARAIN SINGH

JUDGEMENT

(1.) This application by the plaintiffs is directed against the order of the Subordinate Judge dated April 12, 1967 allowing intervener Kapildeo Narain Singh to be added as a defendant in the partition suit.

(2.) The parties agree that the land in suit appertain to tauzi No. 3409, village Bikku 'of 'Gaya Collectorate and belong to Shri Shyamkant Lal and Shrikant Lal sons of Shri Radha Kant Lal, who gifted away the property as well as mukarir interest to their sister Sabitri Devi since deceased under a registered deed of gift dated October 25, 1932 and since then Smt. Sabitri Devi remained in possession over the same. The suit land which formed the bakasht land of the aforesaid property or mukarir interest was in khas possession of Smt. Sabitri Devi till her death. According to the case of the plaintiffs, after the death of Smt. Sabitri Devi her daughter Smt. Damayanti Devi, Smt. Jayanti Devi Smt. Arundhati Devi and Smt. Renuka Devi (defendants 2 to 5) inherited the bakasht and other khas land of the mahal and came in possession of the same. The properties were being managed and looked after by their father Sri Damodar Prasad, during the life time of Smt. Sabrtri Devi as well as after her death on behalf of his daughters (defendants 2 to 5). The Estate of defendants 2 to 5 vested in the State of Bihar and thereafter defendants 2 to 5 became statutory occupancy raiyats in respect of the bakasht lands possessed by them. They had 63.19 acres of khas lands fully described in schedule A of the plaint. The plaintiffs claim to be the purchasers of -/12/ - annas interest of Smt. Damyanti Devi, Smt, Jayanti Devi and Smt. Arundhati Devi (defendants 2 to 4) in respect of 51.93 acres as mentioned in schedule B of the plaint and they claim to have come come possession of their purchased lands. It is also alleged by them that defendant No. 1 had purchased -/4/ - annas interest in 49.02 acres described in schedule C of the plaint out of the aforesaid lands mentioned in schedule A from Smt. Ranuka Devi (defendant No. 5) under a registered sale deed, dated, the 11th November, 1:964. After the sale by defendants 2 to 5 some lands of plots 496, 554 and 1551 remained in possession of defendants 2 to 5 and those lands the plaintiffs left out of partition, but in order to avoid difficulty, the entire land was mentioned in the plaint. The plaintiffs have since been in joint possession of the suit land and have been feeling inconvenience in enjoyment of the same. Hence, they have filed the present suit for partition of their -/12/ - annas interest in schedule B lands.

(3.) Defendants 1 and 5 have appeared in the suit and filed separate written statements. However, their defence is the same. They contend inter alia that the plaintiffs have got neither unity of title nor unity of possession over an inch of the land in partition and by their purchases they did not acquire any title or possession over any portion in the suit land. Their main defence is that after the death of Smt. Sabitri Devi, the entire suit properties were inherited by Smt. Renuka Devi (defendant No. 5). At the time of the death of Smt. Sabitri Devi, other three daughters, namely, Smt. Damayanti Devi, Smt. Jayanti Devi and Smt. Arundhati Devi (defendants 2 to 4) had been married and were well provided at the time of the death of their mother Smt. Sabitri Devi. Only defendant No. 5 was unmarried and, as such, as the properties were the Stridhan property of Smt. Sabitri Devi, they were inherited by defendant No. 5 alone and she came in possession of the same. After the vesting of the Estate in the State of Bihar, defendant No. 5 became the statutory occupancy raiyat in respect of the entire bakasht land as described in schedule A of, the plaint. The other daughters never had any concern over the same and they did not become the raiyats in respect of those lands. They characterised the sale deed of the plaintiffs by defendants 2 to 4 as a sham and illegal transaction without consideration, as defendants 2 to 4 had neither title nor possession of any portion of the suit land. On these grounds they now resist the partition suit of the plaintiffs,