HARIHAR PRASAD SINGH Vs. HITLAL SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for the partition of a number of villages which once belonged to a family represented by one Chintaman. Chintaman left five sons--Madhumangal, Bishwanath, Bijaygobind, Narsingh and Bhagwat. Owing to the rule of primogeniture, which obtained in the family, Madhumangal got the bulk of the estate after the death of Chintaman, and certain villages were given to the remaining four sons by way of maintenance. The present suit relates to these villages. The only question which this Court is asked to determine relates to the partition of 441 bighas of land which are situated mainly in villages, viz., Itwa, Simra, Olapur and Chakipar. At this point it becomes necessary to state the previous history of these lands. The record, of rights shows that the bulk of these lands was in possession of a number of tenants who were recorded therein as occupancy raiyats.

(2.) Some lands were also recorded as ghairmazrua. In 1912 Narsingh and Bhagwat, two of the sons of Chintaman, gave a thica lease in respect of the villages under partition to two persons named Ratu and Ramnarain for a period of nine years. It appears that by this time the whole of 441 bighas was in the cultivation of tenants, and in 1916 the thicadars brought suits for rent against them and obtained decrees against them. On 15 September 1919, the thicadars purchased these lands in execution of their decrees and shortly after that they conveyed them to certain persons by means of two kobalas which were executed on 22 May, 1920 and on 25 September 1920 respectively. By the kobala of 22 May, 1920 the thicadar sold 213 bighas out of the 441 bighas to Narsingh and the sons of Bhagwat, who are still proprietors of a small share in one of the villages under partition; and on 25 September 1920 they sold 228 bighas to one Jagdish Narain who had in the meantime acquired a 3 annas interest in the villages under partition, by means of a kobala executed in his favour by Saraswati, widow of Bijaygobind, one of the sons of Chintaman.

(3.) The interest which Bhagwat and Narsingh possessed in the property except Maisaha has now passed into the hands of defendants 12 to 15, who have preferred this appeal. The whole of the interest of Jagdish Narain has, on the other hand, passed into the hands of defendants 5 to 9 and certain others. Saraswati still retains a small interest in some of the villages under partition; and the remaining share of Bijay-gobind's branch has now passed into the hands of defendant 10. Similarly, the four annas interest of Bishwanath has been acquired by the plaintiff-respondents. The point which has to be decided by this Court is how these 441 bighas of land are to be partitioned between the persons interested in the villages under partition at present.