PANO KUER Vs. BALESHWAR PANDEY

JUDGEMENT

(1.) This appeal is by the defendants. The suit was brought for partition of an orchard bearing Khesra Nos. 465, 466, 470, 472, 504, 505, 506, 507, 509 and 510 of Khata No. 48 in village Barauli in the district of Gaya. According to the plaintiffs,-the plaintiffs and their ancestors and defendants Nos. 1 to 5 and their ancestors and the landlord, namely, late Rameshwar Prasad Narain Singh, father of defendants Nos. 14, 15 and husband of defendant No. 16, decided that there should be in the village a place where Barat parties might stay. For that reason, they selected a plot near plot No. 468, which was Devi Asthan. Hence, the plaintiffs and defendants Nos. 1 to 5 agreed to contribute their lands as mentioned in Sch. A, measuring 1.44 acres. Then an orchard was planted. This was done in 1335 Fs., corresponding to 1928. After the orchard was ready, the parties who contributed their land came in joint possession of the orchard and enjoyed the usufruct according to their respective shares. There were certain changes in the shares due to sales and inheritance of the lands the details of which are given in Schedule B of the plaint. In Baisakh 1363 Fs., some persons cut some trees from the orchard as mentioned in Schedule D of the plaint and they did not distribute the timber to the plaintiffs according to the share. They finally refused to do so on the 24th of June, 1956. Hence, the suit.

(2.) Defendants Nos. 1 to 5 filed one set of written statement supporting the case of the plaintiffs. Defendants Nos. 6 to it having got a clue of transfer from defendants 14 to 16 filed another set of written. statement and defendants Nos. 14 to 16, the ex-landlords, filed another set of written statement. They have raised more or less identical pleas. They denied the allegation of the plaintiffs. According to them, the ex-landlord Rameshwar Prasad Narain Singh had an orchard near the Devi Asthan and he extended it by taking lands from the tenants by exchange or surrenders or auction purchase etc. He planted trees in these lands and also constructed boundary ridges all round the land in the year 1332 Fs. He was in exclusive possession of the orchard, and after his death, defendants Nos. 14 and 15 came in possession of the orchard in question. They remained so till the 6th of July, 1956 when they sold it to defendants Nos. 6 to 11 by registered sale deed for valuable consideration and from that time onwards defendants Nos. 6 to 11 were in possession of the orchard in question.

(3.) The trial Court did not accept the defence story of the acquisition of land from the tenants, as alleged by defendants Nos. 14 and 15. It held that the plaintiffs had title to the suit land and there was unity of title and possession. Accordingly, a preliminary decree was ordered to be drawn up in accordance with the shares as given in Schedule B to the plaint. The shares of defendants Nos. 14 to 16 were to go to defendants Nos. 6 to 11 who claim to have purchased the shares of these defendants. The trees given in Schedule D of the plaint were also to be divided according to the shares of the parties as given in Schedule B of the plaint. The share in trees of defendants Nos. 14 to 16 and their descendants, who were also parties to the suit, were to go to defendants Nos. 6 to 11. An order was passed for the appointment of a pleader commissioner on the petition of the plaintiffs to carve out separate takhtas for the parties. It was also directed that the pleader commissioner would allot the trees to the parties on whose land they stood so that the trees might not have to be cut down. In case the number of trees in any particular land exceeded the proportionate share of a particular party, the party who would be allotted more trees would have to pay their money value to compensate others. On appeal from the judgment it was held by the learned Subordinate Judge, Gaya, that the finding of the learned Munsif in favour of the plaintiffs and defendants Nos. 1 to 5 that they contributed certain plots of their land near the Devi Asthan, on which the orchard was raised, rested on good evidence and they had title to the suit plots. They had also unity of title and possession and hence the plaintiffs were entitled to a decree for partition in the case and the question of limitation did not arise. It was further held that the claim of the plaintiffs that they should be entitled to trees standing on the lands after assessing their value in proportion to the respective areas contributed by them could not be allowed. They had not made out any such case in the plaint that there was an agreement between the plaintiffs and defendants Nos. 1 to 5 and their ancestors and the ancestors of defendants Nos. 14 to 16 that all parties would have a share in the timber of the trees irrespective of the fact on whose land the trees stood. Accordingly, he modified the decree and directed that "the trees would go along with the lands over which they stood." He disallowed the claim of the plaintiff, therefore, for partitioning the trees in the manner as claimed by them. The defendants other than defendants Nos. 1 to 5, who are respondents, have come up in appeal.