TULSI SAO Vs. TRIBHUWAN SAO

JUDGEMENT

(1.) 1. This appeal has been preferred by the above named plaintiffs -appellants against the judgment and decree dated 5.2.86 and 15.2.86 respectively passed in Partition Suit No. 9/64 of 1983/85 by the then 3rd Additional Subordinate Judge1 Hazaribagh, whereby and whereunder the plaintiffs' suit for partition claiming two anas shares in the suit property contained in Schedule -B of the pLalnt has been dismissed.

(2.) To approach the facts of the case, geneaology of the parties is essential to be reiterated. Such geneaology has been described in the Schedule -A of the pLalnt, which is admitted by both the parties. The same is being reproduced below:

(3.) There was also some purchase in between the shareholders and the plaintiffs have also purchased some lands from Bulak Sao, the predecessor of some of the defendants inheriting form Hardeyal Teli. Two sets of the defendants have filed separate written statement. Defendant Nos. 2, 6, and 7, who are the sons of heirs of Hardeyal Teli, in their written statement supported the plaintiffs' case. They further mentioned that the lands separately recorded in the name of Jitan Teli in Khata No. 34 of the village was the exclusive land of Jitan Teli and in his old age he executed a registered Will on 29.4.1936, in favour of Neman Sao, predecessor of the plaintiff out of live and affection and after the death of Jitan Teli, Neman Sao came in possession of the land in khata No. 34 and continued in its possession exclusively all along till his death and after the death of Neman Sao, Khata No. 34 also came in possession of the plaintiffs and the other defendants of this suit i.e., other heirs of Megho Teli have got no right, title and interest or the possession of the land of Khata No. 34. The contesting defendants are the defendant Nos. 1, 3 to 5, 9, 11 to 13 and 15 to 20. In their written statement, they have taken usual pleas such as the suit is misconceived and has been filed on false allegation, that there is no cause of action and that the suit is barred by law of limitation, and the principle of waiver, and estoppel, that the suit is bad for mis -joinder and nonjoinder of the parties and that the same is not maintainable in it present form. Their case is that Hardeyal Teli and Meghu Teli separated and partitioned their land of khata No. 69 during their life time and it is not a fact that Hardeyal Teli and Megho Teli died in the jointness without partition in the suit land. The sons of Hardeyal Teli cultivated the land of khata No. 69, which was allotted to Hardeyal Teli in partition and that the defendant Nos. 1 to 8 inherited the land allotted to Hardeyal Teli on amicable partition with Meghu Teli and that they are in separate possession of the same. It was totally denied that there was unity of title between Meghu Teli and Hardeyal Teli. According to these defendants, Meghu Teli and Hardeyal Teli had amicably partitioned their land in half and half share during their life time and that after their death also their descendants possess the land as per their shares in the suit khata. It was further contended that Megho Teli's son were also partitioned during the life time of Meghu Teli and the three sons of Megho Teli in such amicable partition got the lands under Khata No. 69, while Nemo Sao, the predecessor of the plaintiffs got the land of khata No. 34 as Jitan Teli during his life time had re -united with the joint family and started living with Megho Teli and by love and affection the lands were also relinquished in favour of Nemo Sao, the predecessor of the plaintiffs and hence Nemo Sao had not been given any land at the time of amicable partition of the suit khata.