SOMARIA DEVI Vs. MAHADEO GOPE

JUDGEMENT

(1.) This First Appeal has been preferred against the judgment and decree dated 10 August 1994 and 25 th August 1994 respectively, passed by Sub Judge 2nd, Patna, in Title Partition Suit no. 344 of 1986, by which the suit filed by the plaintiff has been dismissed on contest with costs.

(2.) The case of the plaintiff-appellant is that the plaintiff and the defendants 2nd party are the descendants of one Ramphal Gope. Ramphal Gope had four sons, namely, Gulab Gope, Sampat Gope, Nirpat Gope and Janak Gope( Defendant no.7). Most Basmatiya Devi was the wife of Gulab Gope. Punwa Devi, Sheokuri Devi and Somaria Devi (plaintiffs) were daughters of Sampat Gope. Punwa Devi was married to Ram Sevak Gope. Defendant nos. 2 to 4 are the sons of Punwa Devi. The plaintiff Somaria Devi had been married with Bhagat Gope. The plaintiff has got four sons and three daughters. The defendant nos. 8 to 12 are sons of Janak Gope ( defendant no.7). Gopal Gope Defendant no.13 is son of Defendant no.8,Ramphal Gope. Ramphal Gope had a brother, named Raghunath Gope. Marni Devi was widow of Raghunath Gope. Ramphal Gope and his four sons were member of joint family. They were in joint possession of the family properties fully described in schedule 1 of the plaint. Gulab Gope son of Ramphal Gope died about 52-53 years ago in the state of jointness leaving behind his widow Most. Basmatiya. Thereafter, his brother Nirpat Gope expired issueless about 40-50 years ago in the state of jointness. Then, Ramphal Gope and his two sons, namely, Sampat Gope and Janak Gope ( defendant no.7) came in joint possession of the entire joint family property by survivorship. In course of time out of aforesaid property certain properties were sold. Some of the family properties were acquired by Land Acquisition Department which is detailed in schedule II lot no. 2 of the plaint. Further aforesaid Sampat Gope and Janak Gope sons of Ramphal Gope remained in possession of the properties fully described in schedule III of the plaint. Thereafter, Sampat Gope died sometime about 1941-42 in the state of jointness leaving behind his widow Gharbharni Kuer. Gharbharni Kuer came in possession with her daughter, namely, Punwa Devi, Somaria Devi ( plaintiff) and Sheokuri Devi and nearest legal heir of Sampat Gope. Sheokuri Devi expired and thereafter Ramphal Gope also died in 1951 in the state of jointness leaving behind his daughter- in -law Gharbharni Devi and two daughters namely Punwa Devi and Somaria Devi (plaintiff) and his son Janak Gope ( defendant no.7) and sons of Janak Gope ( defendant nos. 8 to 12). Thus Gharbharni Kuer and defendant 2nd party ( defendant nos. 7 to 13) came in possession of the entire joint family properties described in schedule III of the plaint. Gharbharni Kuer also expired on 17.09.1962 leaving behind her two daughters, namely, Punwa and Somaria Devi ( plaintiff) who inherited the properties of Gharbharni Kuer and, thus, they came in possession of the joint family properties along with defendant 2nd party.

(3.) The plaintiff learnt on 15.10.1986 from one Tek Narain Singh son of Late Bachchu Singh of village Changar, Kekar Bigha, Dist- Patna, that Punwa had filed Title Suit No. 1191 of 1962 in the Court of Sub Judge-II, Patna for partition of joint family properties against defendant 2nd party ( defendant nos. 7 to 13) and Most Basmatia Devi widow of Gulab Gope and it was transferred to the Court of Additional Sub Judge, Patna, and the suit was numbered as T.S. No. 119 of 1962/2 of 1965. That suit was decreed and thereafter there was First Appeal No. 278 of 1965 from preliminary decree before the Hon'ble High Court by defendant 2 nd party which was dismissed and by appointment of Survey knowing Advocate Commissioner Separate Takhta of the land had been allotted and delivery of possession had also been effected on the land allotted to the Punwa Devi by partition in Execution Case No. 01 of 1985 by the Court of Additional Sub Judge-V, Patna. Further, it has been stated that the plaintiff came to learn that Punwa Devi had concealed the existence of the plaintiff with dishonest intention to have illegal gain. Thereafter, the plaintiff got enquired through her husband Bhagan Ram about the aforesaid suit and got the same inspected on 01.11.1986 and then came to learn about the dishonest and fraudulent act of Punwa Devi. Further, the plaintiff came to know that Punwa Devi had earlier filed suit in the Court of Sub Judge- II, Patna, for partition of joint family property alleging that she was the only daughter of Gharbharni Devi. The witness of Punwa Devi had admitted in evidence that the plaintiff was also the daughter of Gharbharni Devi but, even then she did not implead the plaintiff as party to that suit. That suit was decreed by judgment dated 14.07.1965 and preliminary decree for partition was prepared and thereafter the defendant 2 nd party filed F.A. No. 278 of 1965 which was dismissed. Punwa Devi the plaintiff of Title Suit No. 119 of 1962 filed petition for appointment of Advocate Commissioner which was allowed and Takhta was carved out and the properties fully described in Schedule IV of the plaint was allotted to the plaintiff of that suit by partition which she deemed to have taken representing the branch of Sampat Gope. The present plaintiff got inspected the Execution case no. 1 of 1965 of the Court of Additional Sub Judge V, Patna, on 10.11.1986. Thus, from the above facts, it is quite clear that the plaintiff has got eight anna share in the property fully described in schedule -IV of the plaint as possession of one of the co-sharer is possession of all co-sharers. Punwa Devi expired in 1976 and the defendant nos. 1 to 6 were her heirs. The plaint depicts that defendant no.1 Ram Sewak Gope husband of Punwa Devi also expired during pendency of the suit. Further case of the plaintiff is that defendant 1 st party are co-sharer of the plaintiff and they got unity of title and possession over schedule IV property in which plaintiff has got half share. Defendants 1st party, in spite of repeated demand, did not agree to give due share to the plaintiff on partition, hence this suit was filed.