KHOSHILAL MISTRY Vs. RAM RATAN VISHWAKARMA

JUDGEMENT

(1.) This first appeal is directed against the judgment and decree passed by Shri V.N. Jha, the then Sub-Judge, III, Giridih in Partition Suit No. 19/87/45/88 by which the learned Sub-Judge decreed the Suit.

(2.) The case of the plaintiff/respondent, in brief as stated is that the house bearing Municipal Holding land No. 314 under Ward No. IV of Giridih Municipality as described in Schedule of the plaint is the ancestral property of the plaintiff and defendants which was constructed by Titai Mistry, grand father of the plaintiff and father of the defendant Nos. 1 to 3. Titai Mistry died about 15 years ago leaving behind four sons/namely, Khoshilal Mistry, Raghu Mistry, Jageshwar Mistry and Dasrath Mistry, who succeeded him and came in possession of the house in suit jointly. Raghu died about 42/43 years ago leaving behind his only son, Ramratan, the plaintiff, who succeeded him and came in possession of the house in suit jointly with his uncles, defendant Nos. 1 to 3. The front portion of the house in suit lies adjacent of the Tundi road and the back portion of the house is double-storied. In the front portion of the house the plaintiff and defendant Nos. 2 and 3 have been running a smithery and welding shop jointly. Khoshilal Mistry, defendant No. 1 is running smithery business separately. The plaintiff and defendant Nos. 1 to 3 have been in occupation of the remaining portion of the house. It is also claimed that at the time of death of Raghu Mistry, the plaintiff was minor and it was his uncle Jageshwar Mistry, the defendant No. 3, who got him admitted in H.E. School, Giridih on 3-7-1954 in his guardianship. Khoshilal Mistry, the defendant No. 1 expressed his desire to be separated from the joint family and some disputes arose at that time regarding partition and for which Panchayati was also convened on 5-6-1977. The defendant No. 1 Khoshilal Mistry separated from the joint family after taking his share whereas the plaintiff and defendant Nos, 2 and 3 agreed to keep their shares in the movable and business joint. The decision taken by Panches was duly signed by parties and Panches on 14-6-1977 and each party received one copy of the said decision. It is further claimed that for the last 3-4 years the defendant. Nos. 2 and 3 have become dishonest and they are not giving the plaintiff any share in the income and as such the plaintiff demanded partition, but denied, hence the suit.

(3.) On the other hand, the defendants filed the written statement claiming therein that the suit as framed is not maintainable and the plaintiff has got no locus standi to file the suit. It is false to say that the plaintiff is the son of late Raghu Mistry and the real fact is that Raghu Mistry died issueless on 14-1-1943 leaving behind his widow Sundari Devi, who after the death of her husband fled away with some unknown person and she never returned to her husband's house. The suit house is the ancestral property of defendants only and the plaintiff has got no concern with the suit house. Titai Mistry died on 24-7-1972 leaving behind his three sons, namely, Khoshilal Mistry, Jogeshwar Mistry, and Dasrath Mistry. Titai Mistry had four sons including Raghu Mistry but the said Raghu Mistry pre-deceased his father, Titai Mistry and Titai Mistry was the Karta of his family. Raghu Mistry died issueless in the year 1943 leaving behind only widow Most. Sundri who fled away. The defendants are doing the business separately in front portion of the house. The plaintiff has got no concern with the business of the defendants and the plaintiff has got no cause of action for the suit, which is fit to be dismissed. Additional written statement was also filed on behalf of the defendants alleging therein that Titai Mistry died on 24-7-1972 leaving behind his three sons and Raghu Mistry predeceased his father and also died issueless. It is false to allege that Jageshwar Mistry got the plaintiff admitted in H.E. School, Giridih on 3-7-1954. The defendants are doing their business separately since long time so question of separation of defendant No. 1 from joint family after taking his share does not arise.