DHANIRAM MAHTO Vs. MOST. RANGO DEVI

JUDGEMENT

(1.) This appeal is against the judgment and decree dated 25th February, 2008 passed by Additional Judicial Commissioner, Fast Track Court, Khunti in Title Appeal No. 13 of 1997, whereby learned Lower Appellate Court has dismissed the title appeal, upholding the judgment and decree dated 30th November, 1996 passed by Sub Judge-Ill in Partition Suit No. 10 of 1989. The appellants were the defendants in Partition Suit No. 10 of 1989.

(2.) The said suit was filed by the plaintiffs/respondents, claiming their one third share in the suit property. The plaintiffs' case is that the suit property belongs to the common ancestor-Khedu" Mahto. Khedu Mahto had four sons, namely, Dhani Mahto, Gangu Mahto, Bayar Mahto and Lachhu Mahto. Khedu Mahto and his son Bayar Mahto died before the revisional survey. After their death, the suit land was inherited jointly by Dhani Mahto, Gangu Mahto and Lachhu Mahto. Bayar Mahto died leaving behind his widow Most. Binod and two daughters, namely, Ghashini Devi and Domani Devi. The survey record of right was prepared in different khewats. Khewat No. 5/9 was recorded in the name of Most. Binod, widow of Bayar Mahto. Said Most. Binod died in 1944 and after her death, the said portion of the property, recorded in khewat No. 5/9, devolved upon the surviving sons of Khedu Mahto. The plaintiffs have one third share in the suit property. The parties were separately cultivating their lands, but it was not convenient for them to cultivate the lands without partition by metes and bound. The plaintiffs, thus, requested the defendants to partition the suit land, but they avoided. Hence, the said suit was filed for the aforesaid relief.

(3.) The suit was mainly contested by the sons of Most. Binod. It was, inter alia, stated that the land of khewat No. 5/9 was exclusively recorded in the name of Most. Binod and as such, the same cannot be the subject-matter of partition. The said property, after the death of Most. Binod, was inherited by her daughters and after their death by the defendants Nos. 50 and 51 the descendants of said Ghasini Devi and Domani Devi. It has been further stated that Ghashini Devi was married to Jogu Mahto, who used to live in the house of Most. Binod. Said Jogu Mahto died leaving behind his sons Puran Mahto, who was In continuous possession over the suit land. His possession is noted in the remarks column of the khatiyan prepared in the recent survey. Puran Mahto died leaving behind two sons, namely, Gobardhan Mahto and Harihar Mahto. After the death of Gobardhan Mahto, the said defendants inherited the suit property and they have been continuously cultivating the said land of khewat No. 5/9. The partition suit is, thus, not maintainable in respect of the land of khewat No. 5/9.