RAMJOSH MARWARI Vs. CHANDRA MANDAL

JUDGEMENT

(1.) The suit out of which this second appeal arises was for a tank called Baburbandh in village Chharrah in which one Harijiban Bhagat had a 4 annas share. In 1307 he granted a mukarrari of that share to the mandal defendants- respondents but this tank Baburbandh was not included in the mukarrari deed. That is the admitted case of the parties. Subsequently Harijiban sold his 2 annas milkiat share to defendant 5 and the remaining 2 annas to the plaintiff. So the plaintiff's case is that he and defendant 5 half and half own the tank in question, whereas the Record of Rights shows the tank as within the mukarrari of the mandal defendants.

(2.) In 1914 one of the maliks brought a suit for partition of all the tanks in the mauza as well as other ijmali properties and Harijiban Bhagat was a pro-forma defendant in that suit. The plaintiffs in that partition suit may be described as the Manjhis and they had acquired 2 annas 3 pies share out of 4 annas share belonging to one Khetranath Bhagat who was co-sharer to the extent of 4 annas also along with Harijiban Bhatgat, also of 4 annas, and the partition suit was filed for the bandhs and tanks within the 8 annas share of Harijiban and Khetranath. The defendants were the mandals, now defendant-respondents and persons who may be described as Kabirajes who had acquired a portion, 1 anna 9 pies, of Khetranath's share. Harijiban Bhagat was a pro-forma defendant.

(3.) This suit was fought up to the High Court, the case of the plaintiffs being that all the tanks in the suit appertained to the 8 annas share of Harijiban and Khetranath, acquired by the Manjhis, Kabirajes and Mandals, the two first named being the pro-forma defendants, and they claimed a share proportionate to their purchased interest and alleged that the mandals had 8 annas share and the remaining share belonged to the Kabiraj defendants. In that suit Harijiban did not appear though as I say he was made a pro-forma defendant. The mandals however filed a written statement, alleging that Harijiban had a share corresponding to his original milkiyat interest of 4 annas, in the bandh. An issue was framed in that partition suit as to whether Harijiban had one-fourth share in the said tank or bandh, but at the time of the trial this issue was not pressed.