SANTU MANDAL Vs. MATAL MANDAL ARID

JUDGEMENT

(1.) 1. This appeal has been preferred against the judgment and decree dated 31.1.1983 passed by the then Additional Subordinate Judge, 4th Court, Dhanbad in Title Suit No. 41/52 of 1981 -82, whereby the plaintiffs - -respondents' suit for partition of their 7/8th share in the suit property and for purchase of 1/8th share of defendant No. 1 at a fixed price of Rs. 37,500/ - had been decreed preliminary.

(2.) The suit property is a tank, description of which has been fully detailed in Schedule B of the plaint. According to the plaintiffs, they are governed by Dayabhag School of Hindu Law. Two brothers Sidam Mangal and Netai Mandal having half share each in the suit tank were the original raiyats. The two brothers had partitioned their own raiyati lands besides the suit tank as the same was not capable of partition and as such the tank was left joint, though their shares we're definite having each half share. The two brothers used to rear and catch fish and then the produces i.e. the fish were being divided into two equal shares. Sidam Mandal died about 45 years ago leaving behind four sons, Bhaglu, Suku, Guzar and Jhandu. The other son Mahananda predeceased Sadam Mandal. Jhandu is plaintiff No. 1 while the plaintiff Nos. 4 to 8 are the sons of Suku Mandal and Plaintiff No. 9 is the wife of Sadam Mandal. Plaintiff Nos. 10, 11 and 12 are the daughters of late Suku Mandal. Plaintiff Nos. 1, 2 and 3 are the sons of the other brother Netai Mandal. Defendant No. 6 is the widow of Bhaglu Mandal and Defendant No. 7 is the widow of Bhaglu's son Ananta. Guzar Mandal, the predecessor -in -inter -est of the defendant Nos. 2, 3 and 4 conveyed and sold to defendant No. 1 his undivided two anna share but defendant No. 1, as a matter of fact, did not exercise any act of possession and in the Chakbandi proceeding which was conducted in Topchanchi Police Station at Mauza Gunghasa where the suit tank is situated did not put forth any claim on the basis of his purchase. Sadam Mandal name was also not recorded as a co -sharer of the tank. The plaintiffs have got 14 anna share in the suit tank as plaintiff Nos. 2, 3 7 and 8 have purchased the interest from defendant Nos. 4, 5 who again purchase the share of Bhanu Mandalain, the wife of Anant, Again the plaintiff Nos. 2 and 3 have got nine annas share and plaintiff Nos. 1 and 4 to 12 have got four annas interest and plaintiff Nos. 7 and 8 have got one anna share jointly in the tank and thus, the plaintiff in all have got 7/8th share jointly in the tank besides 1/8th share of defendant No. 1 who got it purchased from Guzar Mandal. The plaintiffs are the major co -sharers of the tank and defendant No. 1 is a stranger and transferee, he started creating disturbances in the peaceful possession of the tank by the plaintiffs. As the tank cannot be partitioned by metes and bounds and the intrinsic value of the property would be lost if the same is partitioned and as such the plaintiffs wanted to purchase the 1/8th share of defendant No. 1 but the same was not agreed upon and as such the plaintiffs have filed the present suit with the following prayers: (A) Decree for partition, the plaintiffs 7/8th share in the property (tank) described in the Schedule -B of the plaint. (B) That an order for sale under the provisions of Partition Act be passed and liberty be given to the plaintiffs to purchase the 1/8th share of defendant No. 1. (C) Decree for appointment of a Commissioner to hold auction sale of the share of the defendant No. 1. (D) A decree for all the costs of the suit. (E) A decree for any other relief or reliefs to which the plaintiffs are entitled to.

(3.) Schedule -A of the plaint gives the genealogy table of the two brothers Sidan Mandal and Nitai Mandal. The suit has been contested by the defendant No. 1 alone. The genealogical table as claimed from the side of the plaintiffs had not been denied and it remained admitted that the plaintiffs have got 7/8th share in the suit tank while the defendant No. 1 by purchase from Guzar Mandal has become the owner of rest of the 1/8th share. That the suit tank being joint has also not been denied. Regarding the Chakbandi proceedings, the defendant's case is that he filed a Title Suit No. 178 of 1977 in the Court of Munsif at Dhanbad for declaration and injunction against the State of Bihar and others and the suit was subsequently decreed in favour of the defendant and the Circle Officer, Topchanchi thereafter in compliance of the direction made in the said suit corrected the Chakbandi by entering the name of the defendant in the Khatiyan. It has also been admitted by the defendant that the suit tank is not in a position to be partitioned by metes and bounds and it has been mentioned specifically in para 50 of the written statement in the following manner: There is absolutely no question of giving liberty to the plaintiffs to purchase the share of the defendant. If the plaintiffs so desire they may sell out their share in favour of this defendant for which he is always ready on payment of market value. The plaintiffs are not entitled to relief mentioned in para -8. All other contrary statements made in the said paragraph are denied by the defendant.