SHIV SARAN RAI Vs. SUKHDEO RAI

JUDGEMENT

(1.) The dispute in this appeal relates to the properties of one Nathuni Rai, a descendant of the eldest branch of the family of Bhup Rai. The plaintiff and defendants, except defendants third party, are descendants of other branches of the family of Bhup Rai. Nathuni Rai had property in two villages, Madhubani and Jagarnath Sarai. In the latter village his property consisted of two holdings, khata No. 178 and khata No. 185. Defendants third party were the landlords of the former holding. In the plaint in the present suit it is alleged that one Paras Nath was the landlord of khata No. 185. After the death of Nathuni Rai, the present defendants 1 and 6, belonging, respectively to the third and fifth branches of Bhup Rai's family, and Aman Rai, father of defendant 7 of the second branch of the same family, instituted a suit in 1922 against the father and uncles of the present plaintiff, who belonged to the fourth branch of Bhup Rai's family, alleging that the second, third, fourth and fifth branches of the family had each inherited one-fourth of Nathuni Rai's property. That suit was decided in favour of the father and uncles of the present plaintiff, it being held that they were the nearest surviving heirs of Nathuni at the time of his death. Despite this decision the dispute between the parties continued with the result that proceedings under Section 144, Criminal P.C., were initiated and resulted in an order against the contesting defendants in this suit prohibiting them from interfering with the present plaintiff's possession of the two holdings in Jagarnath Sarai. This was in March 1926. At the end of the same year the present plaintiff again complained that his possession was being interfered with and he asked for proceedings under Section 107 to be taken against the persons complained against. His request was refused.

(2.) Consequently, on 27 August 1927, he filed the plaint in the present suit alleging: that as a result of the refusal to initiate proceedings under Section 107 he had been dispossessed on 5 Pus, 1334 Fasli, corresponding to 24 December 1926. Defendants 1 to 4 in the suit were the descendants of the third branch of Bhup Rai's family; defendant 5 was a descendant of the fourth branch; defendant 6, a descendant of the fifth branch, and defendants 7 to 9 of the second branch. The landlords of khata No. 178 were also impleaded as defendants third party. Defendant 5 filed a written statement admitting the plaintiff's claim. Defendants 6 to 9 did not enter appearance. The third party defendants, the landlords, filed a written statement objecting that they had been unnecessarily impleaded in this suit and denying that they had any dispute with the plaintiff. The plaintiff's claim was contested by defendants 1 to 4 alone. They alleged that Nathuni Rai was a congenital idiot and, therefore, that he had not succeeded to any property, but that on the death of his father Pirthi Pal the latter's property had been divided by family arrangement between the second, third, fourth and fifth of Bhup Rai's family. This was a repetition of the claim in the former suit, and it was again negatived. The suit was decreed and an appeal by the contesting defendants failed. Thereafter defendant 7, against whom the suit had been decreed ex parte, applied for a re-hearing. His application succeeded, with the result that the suit has been re-tried as between plaintiff and defendant 7.

(3.) In his written statement defendant 7 did not take the same line of defence as had been taken by the other contesting defendants. He alleged, on the other hand, that on the death of Nathuni Rai the latter's properties were inherited by one Sheotahal of the second branch of Bhup Rai's family who was alleged to be the nearest agnate of Nathuni at the time of the latter's death. He also alleged that plaintiff's father had pre-deceased Nathuni and that Sheotahal, after succeeding to Nathuni's properties, had made an oral gift of them to himself. Defendant 7 claimed to have been in adverse possession of the disputed properties for more than 12 years and also pleaded that the plaintiff's suit was barred by limitation. The plaintiff filed a genealogy of the family with his plaint in which the sons of Bhup Rai were shown as follows: Dihal, the ancestor of Nathuni Rai, Sarab, the ancestor of Sheotahal and defendants 7 to 9, Udwant, the ancestor of defendants 1 to 4, Mana, the ancestor of defendant 5 and the plaintiff, Sadan Rai, the ancestor of defendant 6, and Ramji Rai who was stated to be the adoptive father of Mahipat Rai, the father of Sheotahal. Defendant 7 denied that Dihal and Sarab were sons of Bhup Rai or that Ramji Rai had adopted Mahipat.