SURESH CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal has been preferred by the above named defendants -respondents against the judgment and decree dated 26.2.1998 and 19.3.98 respectively passed by the then 1st Additional District Judge, Godda in Title Appeal No. 19 of 1985 (64 of 1988) by which the judgment and decree passed by the Subordinate Judge, Godda in Title (p) Suit No. 37 of 1965 has been partly reversed and the suit of the plaintiffs -appellants has been partly decreed. Apparently the appellate judgment is a judgment of reversal in part of the judgment of the original Court. The plaintiffs respondents filed the suit for partition in respect of the different shares in relation to different schedules of the plaint; in total 10 schedules were included in the suit.

(2.) THE admitted position remains that the suit property besides schedules 9 and 10 properties belonged to the joint property of four brothers being inherited as the ancestral property and the plaintiff 's are representing as the descendants of one of the brothers while the defendants different sets represent the other co -sharers. According to the plaintiffs the suit properties were joint and the Bibhisan Panjiyara the main contesting person was the karta of the joint family during the life time of his father and he acquired property as contained in schedule 9 from the joint family and, as such the plaintiffs have prayed for partition. The defendants contended that the schedule 10 properties belonged to Vilaswati Devi who had got no nexus with the joint family and the same schedule has been included only to make the suit bad for multifarious cause of action. Similar is the case of Schedule of the property. It is said to be as self acquired property and not a joint family property. The other scheduled properties were said to be partitioned long back and during the time of survey settlement those properties were, mutated in the names of individuals share -holders and hence there was no unity of title and community of possession. It was admitted from the side of the plaintiffs also that possession was there separately but that was by convenience because of the increase in the share -holders in the joint ancestral family. The original Court dismissed the suit holding the same to be hit by multifarious cause of action and also under When there was no prayer from the side of the plaintiffs regarding declaration of title in respect of schedules 9 and 10 properties. Regarding other properties it was held that the properties were partitioned long back and separate possession was there, according to the shares of the parties. The appeal being preferred, the learned appellate Court also held that the suit for partition was not maintainable in respect of schedules 9 and 10 properties as those properties did not belong to the ancestral properties but he held that for non -maintainability of the partition suit in respect of schedules 9 and 10 properties did not render the whole suit infructuous. In respect of other properties as described in schedules 1 to 8 after discussing the evidence both documentary and oral the appellate court came to the finding that although separate possession was there but such possession did not presume any previous partition as the shares were never allotted and, as such the contention of the plaintiffs that the possession was separate due to convenience was accepted by the appellate Court and hence, decreed the suit in respect of suit properties besides schedules 9 and 10 properties.

(3.) I have gone through the judgment of both the Courts below in the light of the submissions made on behalf of the Senior Advocates. It appears that the appellate Court took much pain just as an original Court to appreciate the evidence both documentary and oral to come to a proper decision. He had whenever necessary discarded the original court 's conclusion on the factual aspect by saying how faulty it was. Regarding the admission I had scrutinised the plaint and found that there was no such admission. Regarding separation or partition it is true that the plaintiffs had pleaded that after the survey settlement the sharers were possessing lands separately for convenience but no partition was there by metes and bounds at any time. Regarding the entries in the Jamabandi learned appellate Court considered the same on the basis of the oral and the other documentary evidence and came to the finding that such entries never presumed any separation or dis -unity of the title.