MOTISHWAR MURMU Vs. MAHATAN MURMU

JUDGEMENT

(1.) This second appeal is against the judgment and decree of Learned District Judge, Jamtara, whereby he has upheld the judgment and decree passed by learned Subordinate Judge No. 3, Jamtara in Title (Partition) Suit No. 3 of 2001.

(2.) The plaintiff had fited the suit for partition claiming his 1/3rd share in Schedules-A and B property, 1/6th share in Schedu!e-C property and 7/24th share in Schedule-D property. The defendants had contested the suit on the ground, inter alia, that there was no unity of title for partition and the suit for partition was not maintainable. It was also claimed that Bibhisan Murmu is an adopted son of Degra Murmu. Thote Murmu had died leaving behind his son Degra Murmu and Degra Murmu had adopted Bibhisan Murmu as his son. The adoption is valid and genuine, Bibhisan Murmu inherited the entire property of Thote Murmu after death of Degra Murmu. The plaintiff, as such, has no unity of title and possession and is not entitled for partition.

(3.) Both the parties adduced their evidences, oral and documentary. Learned trial court, on appraisal of evidences, found from the judgment and decree (Exbt.-1) passed in Title Suit No. 48/1984 that the adoption was illegal and did not confer any right to adopted son Bibhisan Murmu and that there was no custom of adoption in the community. He further held that the said decision of T.S. No. 48/1984 was not challenged and the same became final and binding. The said controversy regarding the adoption set at rest. In the earlier partition suit the plaintiff was party but his share was not partitioned. The plaintiff had filed an application for rectification of the judgment and sought a decree for partition of his share. By order dated 5.5.2000 passed in Title Suit No. 48/1984 the court had found that the plaintiff had got 2/3rd share. However, since the plaintiff had not impleaded Sukarmoni, the daughter of co-sharer, in her absence learned court did not pass any decree for partition of the plaintiff's share. In view of the above facts and the other materials and evidences on record the trial court recorded its finding that Degra died issueless and his entire property devolved upon his agnate-Mangal and Baijal. He further held that the plaintiff, being son of Keshar, got 1/3rd share in Schedules-A and B property, 1/6th share in Schedule-C property and 7/24th share in Schedule-D property. Learned trial court, in the said term, decreed the suit.