RUP CHAND MAHATO Vs. GOBINDA MAHATO

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 28th January, 1989 in Title Suit No. 76 of 1986 passed by the Subordinate Judge, 2nd, Saraikela, by which the learned Sub-Judge dismissed the suit.

(2.) The short facts giving rise to this appeal as pleaded by the plaintiffs that the plaintiffs and defendants are descendants of a common ancestor namely Manbodh Mahato who was settled raiyat of village Khudilong and the suit lands belonged to Manbodh Mahato who died long before last revisional survey of 1964 leaving behind four sons, namely, Rathu Mahato, Lakhan Mahato, Kandra Mahato and Suku Mahato. All the four sons of Manbodh Mahato died leaving behind their sons and daughters. Rupchand Mahato, son of Lakhan Mahato is the plaintiff No. 1 whereas plaintiff Nos. 2 to 4 are sons of Suku Mahato and plaintiff No. 5 is the widow of Suku Mahato. Sarla Devi is the daughter of Lakhan Mahato. The defendant No. 6, Bhusru Mahato is the son of Kandra Mahato, while pro forma defendant No. 2, Babi Mahatain is the daughter of Kandra. The plaintiff Nos. 2 to 4 are sons of Suku Mahato whereas Jira Mahatain is the widow of Suku Mahato, Rathu Mahato, who died long before 1964 survey was survived by three sons namely Bhadari, Baneshwar and Maheshwar Mahato and all of them are dead. The defendant Nos. 2 to 4 are the sons of Bhadri Mahto. The defendant No. 5 Dilip Mahato is the son of Baneshwar Mahato whereas defendant No. 7 Nunibala Mahtain is the daughter of Maheshwar. The parties are the members of Hindu coparcenary governed by the Mitakshara School of Law. The lands described in Schedule A was recorded under Khata No. 17 of village Shayam Nagar and these lands were mortgaged by his eldest son Rathu Mahato by registered mortgage deed dated 17-5-1909 and the said land was recorded in the name of Rathu Mahto. But, the said lands are joint family property. Manbodh Mahato had purchased some lands in Mouza Khudilong along with some strangers namely Lalu Mahato and Gobinda Mahato and in the land so purchased Manbodh had half share while the remaining half share belonged to Gobinda Mahato and Lalu Mahato, and the said lands were recorded in khata No. 25 of the Cadastral survey of 1907. Manbodh, Gobinda and Lalu Mahato were all dead and the lands were recorded in revisional survey under khata No. 104 in Mouza Khudilong in the name of Lakhan and Suku Mahato, sons of Manbodh Mahato, Bhusru Mahato, son of Kandra Mahato, Gobinda Mahato, Nandlal Mahato, Bidhu Bhushan Mahato and Phul Chand Mahato, all sons of Bhadari Mahato, Dilip Mahato, son of Baneshwar Mahato, Maheshwar Mahto, son of Rathu Mahato and the heirs of Lalu Mahato and Gobinda Mahato, the co-sharer purchasers. The specification of the shares given in the said Khatian of respective co-owners is wrong, The defendant Nos. 1 to 4 are the descendants of Bhadari Mahato while the defendant No. 5 is the descendant of Baneshwar Mahato, whereas Ghusru Mahato, defendant No. 6 was the only legal heir of Kandra Mahato. The lands described in Schedule A recorded under Khata No. 24 of Cadastral Survey was recorded in the revisional survey under khata No. 105 of Mouza Khadilong in the names of co-sharers Lakhan Mahto, Suku Mahato, Ghusru Mahato, Gobinda Mahato, Nandlal Mahato, Birlhu Bhushan Mahato, Phul Chanel Mahato. Dilip Mahato, and Maheshwar Mahato but the specification of shares mentioned in respect of each of the co-sharers in column No. 2 of Khatiyan is not correct. The lands described in Schedule-B came to be recorded under khata No. 10 of the last revisional survey in the names of heirs of Rathu Mahato alone. Though the lands are joint lands; there has been no partition of Schedule A and Schedule B lands by rretes and bounds, though the parties have been in possession of the distinct portion of the suit lands according to convenience. The plaintiff No. 1 has got I/4th share in the suit properties and for which the plaintiff also requested for partition but the defendants did not pay any heed, hence the suit.

(3.) Defendant Nos. 1 to 5 and 7 filed joint written statement claiming therein that there is no unity of title and unity of possession in respect of suit property. The land under khata No. 24 was recorded in the name of Manbodh Mahato besides other lands of Cadastral survey khata No. 25 and .said Manbodh Mahato married twice. He had one son Rathu from first wife whereas he had three sons, namely, Lakhan. Kandra and Suku from second wife. Before the Cadastral survey settlement the said Manbodh separated his eldest son Rathu from him by allotting certain lands to him and the lands allotted to Rathu was recorded in the remarks column of khatiyan No. 24 under the possession of Rathu Mahto. The lands allotted to Rathu Mahto by his father Manbodh was exclusively recorded in his name as being the Schedule-1 of the written statement. 11 is also claimed t hat plot No. 81 and 89 of khata No. 24 having an area of 3.05 acres and 0.86 acres were mortgaged to some other persons. The land belonging to khata No. 17 of village Shyam Nagar was the self-acquired property of Rathu and it was recorded in the revisional survey in his name alone as he himself bad mortgaged the property in question and also redeemed the said mortgage and the said lands under revisional survey of khata was recorded under khata No. 10 in the name of heirs and legal representative of Rathu Mahato. The lands under Schedule B was never ancestral property of the party. It is further claimed that lands of Cadastral Khata No. 25 was already partitioned between Rathu and his father and the lands allotted to Rathu has been separately recorded to be in possession of his descendants in the present survey Khatiyan No. 104. It is further claimed that plot No. 66.71, and 72 under Khata No. 105 was recorded wrongly but possession of Rukhi Mahato has been recorded in the remarks column. All other lands of khata No. 105 were alleged for partition and the possession has already been noted down in the survey record of rights. The possession of lands had been noted in the remarks column as per partition already held long ago. There was disruption of joint family even before the Cadastral survey settlement operation and as such it cannot be said that the suit property was held and possessed as coparcenary property. There has been a previous partition already held, which will be evident that Sarla Mahatain purchased certain lands from Maheshwar Mahato by registered sale-deed dated 19-5-1981 and Maheshwar has also sold some lands under C.S. Khata No. 24 and as such the plaintiffs have got no cause of action for the suit and the suit is fit to be dismissed.