RAMKISHUN LAL Vs. UGRAMOHAN DASS

JUDGEMENT

(1.) This is an appeal by the plaintiffs from the judgment of the Additional Subordinate Judge, Bhagalpur, decreeing their suit for partition, but allowing them only one-third of 2 annas 8 pies share instead of 8 annas share, as claimed by them, in the lands described in Schedule 1(a) of the plaint.

(2.) The material facts for the decision of the points raised in the present appeal are these: The plaintiffs brought a money suit against Balgobind Dass, his brother Badri Dass; his two sons Uchitlal Dass and Ugramohan Dass and several others, with whom we are not concerned. A compromise decree was passed (vide. Ext. K) in favour of the plaintiffs against only Bulgobind (defendant No. 1 of that suit), and the plaintiffs' suit against the other defendants, including the two sons of Balgobind was dismissed. In execution of that decree, they purchased 8 annas interest in the lands described in Schedule 1 of the plaint on 12-8-39, and subsequently they also got delivery of possession over the same. But at that stage an application was made on behalf of the decree-holder, namely, the present plaintiff No. 1 appellant, under Order 21, Rule 97 of the Code of Civil Procedure, complaining resistance by the judgment-debtor, In this proceeding the cousins and nephews of Balgobind, including Bataso, widow of Balgobind's brother Gopi Dass, filed an application alleging, inter alia, that by virtue of a private partition said to have taken place in 1927, the disputed properties had been allotted to their share. The application of the decree-holder plain-tiff No. 1 under Order 21, Rule 97 of the Code was allowed on 27-7-40 (Ext. 6). Thereafter, plaintiff No. 1 was put into possession. The present suit for partition was then brought by the plaintiffs, who are father and son, against the sons of Balgobind, who was then dead, and the other persons of the family.

(3.) There is no dispute that there was one Ja-wahir Dass, who had two sons, Ramdeyal Dass and Bhujangi Dass. Ramdeyal had three sons, namely, Balgobind, Badri and Gopi, husband of Bataso. Bhujangi had also sons and grandsons, but it is not necessary to state their names, as they are not material. It is further admitted that Ramdeyal had 8 annas share in the properties belonging to the joint family of both the brothers, Ramdeyal and Bhujangi.