RAM RAIKHA MISIR Vs. LALLU MISIR

JUDGEMENT

(1.) This is a first appeal from order brought by one of the plaintiffs against an order of remand of the lower appellate Court. The facts in the case are as follows: One Faqir Misir owned a 4 pie share in Mauza Mahni Sangram. He had two daughters, Mt. Jagrani who died in 1912 and Mt. Laganmani. Now Mt. Jagrani had a daughter Mt. Ramkali who died in 1916 and Mt. Laganmani had a son Kamla Prasad, who died in 1912, Kamla Prasad's widow is Mt. Parbati, plaintiff 3. On 16 June 1905 Faqir Misir gave half his 4 pie share to his daughter Mt. Jagrani and half to his grandson Kamla Prasad. After the death of Mt. Jagrani Mt. Ramkali her daughter inherited her half share. After the death of Kamla Prasad, his wife Mt. Parbati plaintiff 3 inherited his 2 pies share. After the death of Mt. Ramkali her 2 pies share went to the collaterals of Faqira, namely plaintiffs 1 and 2 and one Chilar Misir. Chilar Misir sold his share to plaintiffs 1 and 2 under sale dead dated 11 December 1926. The result is that plaintiffs 1 and 2 now own one half of the share and Mt. Parbati plaintiff 3 owns the other half of the 4 pies share of Faqir. The plaintiffs brought a suit for a declaration that the plaintiffs are in exclusive possession and occupation as absolute owners without the participation of anyone else in the entire 4 pies share entered in khewat as No. 18 and that if the plaintiffs be found to have been dispossessed, they should be granted a decree for recovery of possession. The cause of action is stated in the plaint to be that the defendants have been making applications for mutation of their names for one pie out of the 4 pies share. But it is alleged that the defendants have not obtained possession. In the plaint in para. 4 it is set forth that there was a partition in the revenue Court of this village which began on 5 July 1912: At that time every cosharer in the village made an application and got a separate lot prepared in respect of his property. Accordingly a joint lot comprising the 4 pie share of Faqira Misir was prepared for Mt. Ramkali and Mt. Parbati plaintiff 3 and it was numbered as lot. 11. In the khewat of the recent settlement the property in the said lot was entered as No. 18. On 15 April 1916 the partition case was disposed of and the partition proceeding concluded.

(2.) In reply to this pleading para. 4 of the written statement stated: As regards para. 4 of the plaint the allegation about the partition proceeding is admitted the rest is not admitted.

(3.) The written statement further proceeded to state that on 11 June 1903 there was a hypothecation decree in suit No. 384 of 1903 passed in favour of the ancestor of the defendants against Faqir Misir and in execution the ancestor of the defendants and the defendants purchased a 1 pie share of Mauza Mahni Sangram at auction sale in 1909 and obtained formal delivery of possession of this 1 pie share on 1 June 1911.