RAMGAHAN MISSIR Vs. MUSAMMAT RAMDASI KUAR

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decision of the (Subordinate Judge of Arrah, dismissing the plaintiff's suit for declaration of title and recovery of possession. The following genealogy will assist in understanding the dispute between the parties: Parsidh and Padarath separated. Out of the ancestral property Parsidh obtained 31 bighas 15 kathas in. khata No. 10 and 2 bighas 2 kathas in khata No. 61. Padarath obtained 32 bighas 19 khatas in khata No. 19 and 3 bighas 2 katas in khata No. 62. In the Record of Rights, which was finally published in 1910, Dudhnath was recorded in respect of the lands in khatas Nos. 10 and 61 and Ramgahan and Rambhogi jointly in respect of the lands in khatas Nos. 19 and 62, Basgit, -Ramkewal and Rambhulan having died prior to 1910. Dudhnath died about 1917 and his widow Gangajali in 1921. Rambhogi died in November, 1923.

(2.) If the decision of the present dispute depended on these facts alone, there would be no doubt that Ramgahan inherited Dudhnath's properties when Gangajali died in 1920 and succeeded to the interest of Rambhogi in the ancestral properties on the latter's death in 1923. But Musammat Ramdasi Kuer (defendant No. 1), the mother of Rambhogi, alleges that there was a partition of the ancestral properties between her husband (Rambhulawan) and his uncle, Ramkewal, the father of Ramgahan (the plaintiff), and that after the death of Dudhnath the latter's property was amicably divided between Rambhogi and Ramgahan. On May 27, 1917, Musammat Ramdasi, purporting to act on behalf of her minor son Rambhogi, executed a mortgage of about 4/1/2 bighas in favour of Ralpanarain (defendant No. 3), on July 20, 1919, a mortgage of about If bighas in favour of Sheonarain Kahar (defendant No. 4), and on June 20, 1924, a mortgage of 9 bighas of land in favour of Balgobind Missir (defendant No. 2). In each case the land mortgaged, amounting all to 15 bighas and 15 katas and was for the greater part land recorded in khata No. 19 which had been allotted to Padarath and which the plaintiff claims as ancestral land. This land is specified in Schedule D-l to the plaint. There was a proceeding between the parties under Section 145, Criminal Procedure Code with respect to the mortgage plots of khata No. 19 and also 10 bighas odd of kahta No. 10 which the plaintiff claims to have inherited from Dudhnath. This land is specified in Sen. D-2 to the plaint.

(3.) The dispute was decided against the plaintiff on March 30, 1926 and the plaintiff alleges that in consequence of this decision the defendants dispossessed him on Jeath 15, 1333-Fasli from the lands mentioned in Schedule D-1 and D-2 (with the exception of plot No. H 6, item No. 24 Schedule D-2 which is not claimed by either, party to the present suit) and from 1 bigha 14 kathas of land recorded in khata No. 62 which the plaintiff alleges to be part of his ancestral land and which is specified in Schedule. E. Part of this land is included in Ram Narain's mortgage of 1917 and part of it in Sheo Narain's mortgage of 1919. The suit was instituted on February 14,1927, for a declaration of the plaintiff's title, for recovery of possession, for mesne profits and for an order permitting the plaintiff to withdraw from the criminal Court Rs. 45 which had been realized by sale of the crops standing on the land at the time of the proceeding under Section 145, Criminal Procedure Code. The Court below held that the ancestral properties had been divided between Rambhogi and Ramgahan by their mothers while they were minors, and that the partition had been accepted by them after attaining majority, after which they had also divided between themselves the properties of Dudhnath. In appeal these findings are challenged and it is also contended, on behalf of the plaintiff-appellant, that even if the ancestral properties and the properties of Dudhnath have been divided he is not bound by the division as he was a minor at the time. The age of the plaintiff has been in contest, the plaintiff alleging that he was only 20 when, the suit was instituted in July, 1927 and the defendants asserting that he had attained majority many years earlier. The defendant's evidence regarding the date of the alleged partition of the ancestral properties is very discrepant. The survey entry of 1910 shows that at that time the plaintiff Ramgahan and Rambhogi were joint. The onus therefore lay on the defendants to prove the partition. The evidence on this point of Ramdasi Kuar (defendant No, 1), mother of Rambhogi, is thoroughly unreliable. On August 26, 1924, while deposing in a criminal case in which accused Ramgahan was convicted of theft of paddy which she alleged had been grown by her son, she stated that she and the mother of the plaintiff had partitioned the ancestral properties "10 or 12 years ago," i.e., between 1912 and 1914; that Ramkewal and her husband Rambhulan were both dead; that the partition took place in the presence of Dudhnath and Damri; and that 34 bighas had been allotted to each of the parties.