RAM LAKHAN MAHTO SON OF LATE SITA RAM MAHTO Vs. HARI CHARAN MAHTO SON OF LATE SITA RAM MAHTO AND SATYADEO PRASAD SON OF HARI CHARAN MAHTO

JUDGEMENT

(1.) THE plaintiff is the appellant against the judgment of affirmance. This appeal is directed against the judgment and decree dated 27.1.2004, passed by the learned Ist Additional District Judge, Patna, in Title Appeal No. 84 of 1996 (Ram Lakhan Mahto V/s. Hari Charan Mahto and Anr.), whereby he has dismissed the appeal preferred by the plaintiff (the appellant herein), and has affirmed the judgment and decree dated 17.4.1996, passed by the learned Sub -ordinate Judge I, Danapur, in Title Suit No. 61 of 1991 (Ram Lakhan Mahto V/s. Hari Charan Mahto and Anr.), whereby the suit was dismissed. In other words, the suit has been dismissed and affirmed in appeal. We shall go by the description of the parties occurring in the plaint. The plaintiff and defendant No. 1 (respondent No. 1 herein) are full brothers, and defendant No. 2 (Satyadeo Prasad) (respondent No. 2 herein) is the son of defendant No. 1. The genealogy of the parties is not in dispute and is reproduced hereinbelow for the facility of quick reference: SITARAM MAHOTO (Died in 1983) | | | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -| | | | | Wife No. 1 Rukhiya Devi Wife No. 2 Dhankueri | Devi | | | | | - - - - - - - - - - - - -| - - - - - - - - - - - -| - - - - - - - - - -| | | | | | | | | | | | Raghunath Shivnath Hari Jeetu | Nandan | | | | | - - - - - - - - - - - - - - - - - - - - - - - - -| | | | | Hari Ram Charan Lakhan (D. 1) (Plaintiff) | | | Satyadeo (D. 2)

(3.) SITARAM Mahto had four sons by his first wife (Rukhiya Devi). He had two sons from the second wife (Dhankueri Devi) who are parties to the suit. Ram Lakhan Mahto, the younger son, is the plaintiff. Hari Charan Mahto, the elder son, is defendant No. 1, and Satyadeo Mahto (the son of defendant No. 1) is defendant No. 2. The plaintiff instituted the suit for declaration that he is entitled to half of 1.68 acres of the land acquired by the family by a registered deed of Patta Kabuliyat in 1952 (Exhibit F/8).

(4.) THE plaintiff has filed the suit for declaration of his title and non -title of the defendants over the suit land in the memo indicated hereinabove, and also for declaration that the mutation order dated 23.6.1989, in Appeal No. 12/82 -83, passed by the D.C.L.R., Danapur, and Mutation order dated 22.3.1991, in Mutation Appeal No. 10(A) of 1989, passed by the learned Additional Collector, Patna, are without jurisdiction, illegal, and would not affect the title of the plaintiff. The plaintiff 'scase as per the plaint is that Sita Ram Mahto had from his first wife four sons namely Raghunath Mahto, Shiv Nath Mahto, Harinandan Mahto and Jittu Mahto. He had from the second wife two sons, namely, the plaintiff (Ram Lakhan Mahto), and defendant No. 1 (Hari Charan Mahto). The four sons from the first wife separated by metes and bounds from their father and the two step brothers. After the partition, Sita Ram Mahto started living separately with his second wife (Dhan kueri Devi) and his two sons from her. In the year 1952, through a registered deed of Patta Kabuliat dated 28.01.1952, Sita Ram Mahto had acquired the lands detailed in schedule -I of the plaint from joint family funds and accordingly kept the same in joint possession. Since the plaintiff was minor and Sita Ram Mahto had apprehension in mind that if acquisition be made in his name, the four separated sons from the first wife might claim in future and as such registered Patta Kabuliat was executed only in the name of defendant No. 1. Later on, there was private partition between the plaintiff and the defendant No. 1 through a Panchayati and accordingly a memorandum of partition was drawn up on a stamp paper on 26.4.1972. All the joint family properties including schedule -I lands were divided half and half between the plaintiff and defendant No. 1, and their parents took only maintenance. Sita Ram Mahto died in the year 1983, and his wife had predeceased him. The lands of Schedule II of the plaint were allotted to the share of defendant No. 1, and the lands mentioned in Schedule III of the plaint were allotted to the share of the plaintiff, and accordingly they were coming in separate possession. As per partition, 84. decimals of land towards west was allotted to the share of defendant No. 1, and the rest 84 decimals of land towards east was allotted to the share of the plaintiff. Defendant No. 1 had sold away entire 84 decimals of land of his share towards west in the plot to three purchasers through three different sale deeds in the year 1973. The residue 84 decimals of land mentioned in Schedule III of the plaint remained in possession of the plaintiff over which he has sought declaration of right title, and interest by filing this suit. The defendants have set up common cause and their case as per their written statement is that in the year 1950 all the sons of Sita Ram Mahto from both wives had separated from each other and also from their father they have got separate lands and have separate possession since 1950. In the said partition the father and mother were given 13 Kathas of plot No. 1070 for their maintenance till life. Soon thereafter the lands of Kazipur were acquired by the government and the father and all the brothers of defendant No. 1 had taken payment of compensation of their respective shares separately, and they had separately purchased lands from the compensation money so received. The defendants denied that there was partition between the plaintiff and the defendants through Panchayati and a memorandum of partition was executed on 26.4.1972. It is alleged by the defendant that if any such memorandum of partition is produced the same is forged and fabricated document in order to create evidence.