CHUNIA MAHATANI Vs. SOBHA MAHTO

JUDGEMENT

(1.) :- This appeal has been preferred by the abovenamed defendant No. 2-appellant against the judgment and decree dated 8-12-1976 and 18-12-1976 respectively in Partition Suit No. 5 of 1974/6 of 1976 by which the suit of the plaintiffs-respondents Nos. 1 to 6 has been decreed for partition of six annas share in the suit khata including the share of defendant-respondent No. 7.

(2.) The suit land consisted of an area of 34.17 decimals appertaining to several plots of village Taranari, PS-Nawadih, District-Giridih, details of which have been mentioned in Schedule B of the plaint. The genealogy with regard to the tracing of title by the parties have not been denied and said genealogy has been given by plaintiffs in the Schedule A of the plaint and the same had been reiterated in the impugned judgment under Para-60. One Mohan Kurmi was the original raiyat. He died leaving behind four sons namely Bhagirath, Atma Ram, Mana Ram and Kishun Ram. Bhagirath Ram, according to the plaintiffs, died in the state of separation from his other three brothers shortly before survey leaving behind his only son Jitan and Jitan being minor he was used to be taken care of by all his uncles in general and Atma Ram in particular. The defendant No. 2-appellant happens to be the sole heir of Jitan. It is the further case of the plaintiffs that after survey settlement in 1916-17 the names of four brothers had been incorporated in the record of rights and just after the survey settlement Atma Ram died without any issue leaving behind his two brothers as his close heirs to succeed his interest in the suit khata No. 48. As per Rule of Inheritance, all the sons of Mohan Kurmi had four Annas share and as such on the demise of Atma Ram, share of Mana and Kishun increased from four annas to the extent of six annas share. All the four Branches arisen out of Mohan Kurmi were separated in mess and property for convenience from before the Survey but there has never been any division of land by metes and bounds. Each Branch is in the cultivating possession of lands according to its convenience and are contributing their quota of rents. The plaintiffs represent the branch of Mana Ram along with defendant No. 1 and defendants Nos. 4, 9 and 18 represent the share of Kishun Ram as his direct descendants, while defendant No. 2 is the sole heir of Bhagirath. According to the plaintiffs, the defendants Nos. 4, 9 and 18 also have the share to the extent of six annas. Defendant No. 3, Tukni Devi is the daughter of Somar and she inherited the share of Somar when Jailal died issueless. She sold her share to the defendant No. 18. It is the further case of the plaintiffs that before this partition suit, previously Partition Suit No. 116 of 1969 was filed by the Branch of Kishun Ram in the Court of Sub Judge, Hazaribagh which after the creation of new Giridih district had been transferred to the Court of Sub Judge, Giridih. In that partition suit, the defendants Nos. 1 and 2 filed two separate written statements contending, inter alia, that there was separation and dissolution of joint family property prior to the survey and while such separation was being made, Jitan and Atma remained joint, but Kishun and Mana had separated themselves and there had been complete partition of the lands by metes and bounds and those recorded under khata No. 48 as per Survey Kabjawari entries. According to the plantiffs, the pleas taken by the defendants Nos. 1 and 2 in the earlier partition suit was false, frivolous and got up. There had never been any partition by metes and bounds. The Partition Suit No. 116 of 1969 could not be adjudicated as the same was dismissed for default. After the dismissal of that suit, the plaintiffs of the present suit again demanded partition of the property but the defendants Nos. 1 and 2 declined the partition of the lands in the suit khata and hence the presence suit.It is also the case of the plaintiffs that Khata No. 91 has long been partitioned by metes and bounds between Mana and Kishun Ram and his heirs are in possession half and half in that khata land. The defendant No. 1 is the Karta of the joint Hindu undivided family constitutes his sons and grandsons. Similarly, Jagarnath, his sons and grandsons formed a joint Hindu undivided family of which Jagarnath is the Karta and he represents the branch of Bhagirath. Defendants Nos. 10 to 28 are the purchasers of certain interest in the lands in suit and hence they have been made parties in the suit.

(3.) The defendants Nos. 2, 3 to 18 and the minor defendants have contested the claim of the plaintiffs. The rest of the defendants have not appeared in the suit in spite of service of summons and as such order was passed for running the suit ex parte against the other defendants.