TUNA DEVI Vs. KALI PADA DEO

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated 30.7.1983 and 10.8.1983 respectively passed by 1st Additional Subordinate Judge, Dhanbad, in Title (Partition Suit No. 27/9 of 1977/ 1981 whereby and where under the plaintiffs' suit for partition of Plot No. 7707 described in the Schedule of the plaint has been dismissed.

(2.) The case of the plaintiffs is that under Khata No. 740 in Mouza Chas, Plot No. 7707 belonged to five brothers namely, Babu Lal Bouri, Bhuban Bouri, Nitai Bouri, Bindu Bouri and Mahindi Bouri. The names of five brothers were finally published in the record of rights. Babu Lai Bouri died issueless. Bhuban Bouri had a daughter Rohini by name and she was married to Chhakari Bouri (defendant No. 3). Rohini has a son Dapu Bouri. Rohini is dead. Nitai Bouri the third brother died without any issue. The fourth brother Bindu had a son Bhokhu by name. Bhokhu also died leaving behind Keli Bouri, defendant No. 4, as his heir. The fifth brother Mahindi Bouri had two sons Kesho and Sukhdeo but both of them died without any issue.

(3.) The case of the plaintiffs is that Babu Lal Bouri and his four brothers has ceased to be a members of the joint family and they became separated in mess but they were possessing their shares of property although separately but remained as joint as tenants in common and there was no partition by metes and bounds. Originally the said Plot No. 7707 was recorded in the record of rights as Gora -II land but by efflux of time, it lost its character as the same was converted into Homestead land and was being possessed by constructing houses thereon. Bhoku Bouri, the father of the defendant No. 4 Kali Bouri sold out his share of land measuring 25 Cubits from East to West and 90 Cubits from North to South within the specified boundaries in suit Plot No. 7707 to Md. Roshan by a registered sale -deed as back as on 17.6.1952. It is the further case of the plaintiffs that Nitai Bouri during his life time sold 25 Cubits from East to West and 90 Cubits from North to South in the same suit plots with specified boundaries to Md. Roshan by a registered sale -deed dated 24.12.1951 and the same is just contiguous to his earlier purchase from Bhoku Bouri. In that way, by two purchases, Md. Roshan became the owner of an area of 50 Cubits by 90 Cubits of Plot No. 7707 and entered into possession and by constructing a house therein, he exercised his physical possession. Then, according to the plaintiffs, Md. Roshan while in possession sold the land purchased by him from Nitai Bouri by sale -deed dated 24.12.1951 to Md. Rafique and others by registered sale -deed dated 18.12.1958. Md. Rafique and others in their turn had sold the land and houses thereon to plaintiff No. 2 by a registered sale -deed dated 21.8.1961. The plaintiff No. 1 purchased the land of Md. Roshan which he purchased from Bhoku by a registered sale -deed dated 21.8.1961. The plaintiffs No. 1 and 2 are the full brothers and they came in possession of the whole area of 50 Cubits by 90 Cubits in the suit plot which was originally in possession of Md. Roshan. They also made further constructions and erected compound wall around their purchased land.