TRIBENI MISHRA Vs. RAMPUJAN MISHRA

JUDGEMENT

(1.) Both these appeals have been taken up together for hearing as these arise out of the judgment and decree in one and the same suit, namely, Partition Suit No. 95/20 of 1961-63 of the Court of the Additional Subordinate Judge,. Chapra.

(2.) This suit for partition was instituted by original Respondent No. 1 Ramdeyal-Mishra, who has since expired and has been substituted by his heirs, namely, his sons and daughters. The parties are descendants of a common ancestor. According to the admitted genealogy Ram-deyal Mishra's father Ratan Mishra had one brother Hikayat Mishra. Defdts 1 to 3 Rambilas Mishra, Brahma Mishra and Anesa Mishra are sons of Hikayat Mishra. Ratan Mishra had four sons, two of whom are dead and the remaining two are defendants 4 & 5 Tribeni Mishra and Kaule--shwar Mishra. Defendants 6, 7 & 8, Gopi-Mishra, Gautam Mishra and Mosst. Raj-pati Kuer are the two sons and widow of Bishun Dayal Mishra, one of the deceased brothers of Ramdeyal Mishra, while defendants 9, 10 and 11 are the sons and widow of the other deceased brother Kishuni Mishra. It appears that there was a previous partition suit between the parties namely Partition Suit No. 31 of 1958 in which a compromise petition was filed and the suit was decreed in terms thereof. According to the terms of the compromise, some of the lands of the family were left joint between all the members of the family, that is, the descendants of both Ratan Mishra and Hikayat Mishra, while some other lands. were left joint as between the descendants of Ratan Mishra alone, that is, plaintiffs Ramdeyal Mishra and his brothers and brothers' sons. The present suit for partition was instituted for partition of the properties alleged to have been left joint in the previous title suit.

(3.) The suit was contested by defendants 1 to 3, that is, the sons of Hikayat Mishra, who filed written statement jointly and by defendants 4, 6 and 7, that is, Tribeni Mishra (who, as already mentioned is one of the brothers of plaintiff Ramdeyal Mishra), Gopi Mishra and Gautam Mishra the two of the sons of the plaintiff's deceased brother Bishura Dayal Mishra. These defendants have also filed a joint written statement. Defendants 5, 9 and 10, that is, the remaining brother of Ramdeyal Mishra and the sons of the remaining deceased brother Kishuni Mishra, filed a joint written statement supporting the plaintiff. The case of both sets of the contesting defendants, that is, defendants 1 to 3 and defendants 4, 6 and 7, was that the suit was bad for non-inclusion of some of the joint lands of the family namely an area of 5 bighas 19 kathas and 8 dhurs, situated in Moham-mad Patti, which originally belonged to one Kesho Misra and which was alleged to have been acquired out of the joint family funds. According to the case of defendants 1 to 3, these lands are still joint as between the parties and they are in joint possession thereof while the case of defendants 4, 6 and 7 was that there has been a partition of these lands as between the plaintiff and other descendants of Ratan Mishra through a Panchayati and, according to the award of the Panches, which was accepted by the parties, 2 bighas out of this area were allotted to the plaintiff and the remaining area was allotted to the two surviving brothers of the plaintiff, and the sons of the two deceased brothers. Further, according to the case of both sets of the contesting defendants, in the compromise petition which had been filed in the previous title suit, the plaintiff, who according to them, was looking after the family affairs and the litigations of the family, had fraudulently inserted a recital to the effect that the lands of Mohammad Patti belonged exclusively to the plaintiff. Defendants 1 to 3's version in connection with the compromise petition was that although they had signed the compromise petition, they had done so without going through the contents thereof and they were accordingly not aware of the incor-Doration of this recital in the compromise petition. On the other hand, the case of the defendants 4, 6 and 7 was that the plaintiff had taken their signatures on a blank paper at their village home and he had thereafter gone to Chapra and got the compromise petition scribed out there and had filed the same thereafter and, as such, they Had no knowledge of the incorporation of the above recital in the compromise petition.