NARAIN MAHTO Vs. RUPCHAND MAHTO

JUDGEMENT

(1.) This appeal has arisen out of judgment and decree passed by 4th Additional Sub-Judge, Palamau in Partition Suit No. 74 of 1976, whereby and whereunder the learned Sub-Judge decreed the suit.

(2.) The case of the plaintiff/respondent as claimed that the plaintiff and defendant Nos. 1 to 29 are coming from the time of Gurudeyal Mahto who was the son of Dukhi Mahto. Gurudeyal Mahto had one son namely Shiv Shyam Mahto, who had four sons namely Hari Mahto, Kali Mahto, Ramdeyal Mahto and Dasrath Mahto and the lands appertaining to khata No. 33 was recorded in the name of Hari Mahto, Ramdeyal Mahto, Ramdeni Mahto, Meghnath Mahto, Shiva Mahto and Ganpat Mahto. The lands of khata No. 34 was acquired by Gurudeyal Mahto and Tulsi Mahto and the said lands were recorded in the name of Hari Mahto, Ganpat Mahto, Ramdeyal Mahto, Ramdeni Mahto, Meghnath Mahto and Shiva Mahto representing the branch of Gurudeyal Mahto and also in the names of Bishwanath Mahto, Bigan Mahto and Deven Mahto representing the branch of Tulsi Mahto. Since both branches of Gurudeyal and Tulsi Mahto have no joint possession in the lands of Khata No. 33 and as such two Partition suits one in respect of lands of Khatas No. 33 and another in respect of khata No. 34 have been filed and the instant suit is in respect of lands of khata No. 33. At the time of last survey operation, separate possession over some plots were mentioned and some plots were shown as joint. The parties were in possession over the said lands for the sake of convenience. There has also been transactions with regard to the joint lands by different sets of parties as defendant Nos. 30 to 44 and 50 to 55 have purchased fractional areas from the plaintiff. Defendant No. 45 purchased some lands from defendant No. 19 whereas defendant No, 46 purchased some lands from defendant No. 1. Defendant No. 47 purchased lands from late Ramdeni Mahto, father of defendant No. 23 and defendant No. 48 purchased some lands from late Shiva Mahto father of defendant Nos. 27 to 29. Likewise, defendant Nos. 56 and 57 purchased some lands from defendant No. 26 whereas defendant No. 58 and defendant No. 26 whereas defendant No. 58 and defendant No, 26 have purchased from the plaintiff and defendant No. 49. The plaintiff is the descendant of Ramdeyal Mahto having 1/4th share in the lands in the suit whereas defendant Nos. 1 to 18 are the descendants in the branch of Hari Mahto. The lands in suit are in joint possession of parties and the plaintiff also requested for partition of the lands which was refused, hence the suit.

(3.) The defendant Nos. 26(1) , 28(2), 29 filed the joint written statement claiming therein that separate suit has already been filed in the lands of khata No. 34 and as such this suit is riot maintainable against these defendants. After survey even the joint recorded lands have been partitioned between the parties by metes and bounds and parties are in separate in mess and cultivation and also have been dealing with the lands separately and exclusively. There is also no clear description of the lands in suit. There is no unity of title and possession between the parties and the entire lands have already been partitioned by metes and bounds. All the parties in suit have been cultivating their lands separately and their names have already been shresta of Government of Bihar and as such the plaintiff has got no cause of action of the suit and it is fit to be dismissed. Other defendant Nos. 31, 31(a), 32, 32 (a), 33, 34, 40, 41, 42, 43, 46, 50, 51, 52, 53, 54 and 56 have also filed joint written statement alleging therein that all the purchasers who have purchased the lands from plaintiff and other defendants are coming in exclusive possession over the lands. As per the survey entries, the father of the plaintiff continued his cultivating possession and after his death, the plaintiff also continued his cultivating possession over the lands belonging to his father and all the members in the suit are coming in separate cultivation possession over the lands since long and so the question of jointness of the lands does not arise. The defendant Nos. 31, 31(a) and 31 (b) have also purchased lands from the plaintiff Roopchand Mahto for valuable consideration of Rs. l.000.00 by registered sale-deed executed as back as in the year 1960 and they are coming in peaceful possession over the said land. The defendant Nos. 33 and 34 also purchased the lands from plaintiff by registered sale-deed executed on 22-4-1971 and their names have also been mutated in the Shresta of Government of Bihar. Defendant No. 54, Keshwar Mahto also purchased lands from plaintiff through registered sale-deed dated 18-8-1975 and he has been in possession over the suit lands. The plaintiff again sold 15 decimals of land under khata No. 33 in plot No. 1149 by registered sale-deed dated 13-1-1977. The defendant No. 26 also sold his 17 decimals of land out of 51 decimals by registered sale-deed dated 17-4-1976, and all the purchasers who have purchased the lands either from the plaintiff or from the members of defendants are in exclusive possession over the land and so the question of re-partition does not arise. The defendant No. 19 also filed written statement claiming therein thus that all the parties are separate since long and there is no jointness between the parties in respect of land in question. The share of the recorded tenant under khata No. 33 has already been mentioned in the survey Khatiyan and accordingly all the members recorded in Khatiyan are in separate possession over the lands. Some lands were recorded as Ijmal which have already been partitioned by metes and bounds between the parties and all the parties are cultivating the lands accordingly. All the members of the suit also constructed separate house and accordingly they are residing separately dealing with lands separately as being the owner and so the question of partition of the suit lands does not arise and the suit is fit to be dismissed. Newly purchasers namely Keshwar Mahto, Udeshwar Mahto, Pramila Devi, Chandmuni Devi and Niyam Dhari Mistri also filed their written statement claiming therein that they had purchased the lands from plaintiff and other members of the suit for valuable consideration by registered sale-deed. Udeshwar Mahto, Pramila Devi and Chandmuni Devi have purchased the suit lands being plot No. 1097, 1098, 1167 of khata No. 33 from the plaintiff Roopchand Mahto by registered sale-deed dated 10-12-1980 for valuable consideration of Rs. 3,000.00 and all the purchasers are coming into peaceful possession over the suit land. The defendant Nos. 20, 21 and 23 also filed written statement claiming therein that Gurudeyal Mahto, son of Dukhan Mahto was granted settlement of a block of land and the said lands subsequently came to be recorded as Raiyati khata No. 33. Gurudeyal Mahto started reclaiming the land improving the same. After the death of Gurudeyal his only son Shiv Sahay Mahto came in possession over the said land. Shiv Sahay Mahto had through his first wife two sons, Dasrath and Kali Mahto, while through his second wife had two sons namely, Hari and Ramdihal Mahto and there was differences between the four sons and as such Shiv Sahay Mahto partitioned the lands between his four sons and he had given the some more lands to the eldest son Dasrath Mahto as being Jethans. It is further claimed that the raiyats or settlees had not right either by custom or law to transfer his right at the time of surrendering the lands to the landlord. During the life time of Ramdihal Mahto, there was no objection about incorrect entries in the record of rights. There was partition already held and other brothers of Dasrath also made Korkar on their respective separate lands. The defendant No. 20 has got no interest in the suit land. Ramdeni who died in 1975 continued in possession of the amicable partitioned land and the entire share of Ramdeni have been inherited by the defendant No. 23, the only daughter. The plaintiff has got no cause of action in the suit and the suit is fit to be dismissed. Bhagwat Mahto also filed written statement claiming therein that Roopchand Mahto, the plaintiff akeady sold lands by registered sale-deed by dealing the land exclusively and the purchasers are akeady in possession of the said lands and so there is no question of partition.