RAMJI SINGH Vs. SUKHDEO SHARMA

JUDGEMENT

(1.) THIS litigation involves a dispute between two purchasers of the same property from two co -sharers. The dispute is in respect of half area of plot no. 1785 khata no.29 village Gopalpur P.S.Naubatpur in the district of Patna. The dispute arises in this way. One Mewa Singh was common ancestor of defendants 2nd and 3rd set. Mewa Singh had three sons, namely, Chetwan Singh, Harbans Singh and Kirit Singh. After the death of Mewa Singh, Chetwan Singh became /carta of the family. Defendants no. 17, 18 and 19 are sons and grand sons respectively of Chetwan Singh. Defendant no.21 Rameshwar is the son of Kirit Singh. Surendra Singh is minor son of Rameshwar Singh. Harbans died issueless.

(2.) THERE is no dispute that Chetwan Singh as /carta of the family purchased plot no. 1785 in the year 1912 in the name of his son Ram Kishun (D.W.17). The claim of Ram Kishun that it was self acquired property has been negatived by both the Courts below. According to the case of the plaintiffs -appellants, there was partition in the family in the year 1943 and all the joint family properties were partitioned. So far plot no. 1785 is concerned, it was divided half and half between defendants -2nd party and defen -dants -3rd party. The southern half of plot no. 1785 was allotted to defendants -2nd party and northern half was allotted to defendant -3rd set and they came into possession accordingly. Defendent -3rd party mortgaged his share to Ganpat Singh by a registered mortgage deed dated 29.4.1957 and the mortgagee came into possession. Thereafter defendant -3rd party being in need of money sold the, mortgaged property consisting the disputed land in favour of the plaintiffs for Rs. 1284/ -. The plaintiffs redeemed the mortgage in 1959 and the plaintiffs came into possession. The plaintiffs, who are appellants before this Courts applied for mutation of their names. Then, they came to know that a collusive sale deed dated 24.5.1959 in the name of Bindeshwari Sharma defendant no.9 had been executed by defendant -2nd party in respect of the entire 67 decimals of plot no.1785. In the mutation proceeding defendant no.17 Ram Kishun made out a case that the entire plot no.1785 was acquired from his own exclusive fund and during partition the said plot was treated as exclusive property of Ram Kishun and that plot had been excluded from partition which according to the defendants -2nd party took place in 1947 by means of panchayati and 1943 as asserted by appellants.

(3.) LEARNED Munsif decreed the suit by deciding all the issues in favour of the plaintiffs. Learned Munsif in his well discussed judgment first dealt with the question whether partition took place in 1943 as stated by the plaintiffs and defendant no. 20 or whether partition took place in 1947 as claimed by the defendant no. 17 and defendants -1st party. Learned Munsif has not given any specific finding on this point but held that the partition effected in the year 1947 on the basis of Panchnama (Ext. -L -1) which was the basis of partition in 1947 was not valid, legal and binding on the parties. Learned Munsif held that the plaintiffs have been able to prove that Kirit Singh had possession over the suit land prior to the execution of sale deed in favour of the plaintiffs. During mortgage Ganpat had possession and after mortgage Kailash came in possession. The plea of adverse possession advanced on behalf of the contesting defendants was rejected. Learned Munsif further found that the plaintiffs had been dispossessed when the trial was in progress.