SUDHIR SINGH CHOUDHARY Vs. MADAN KUMHAR

JUDGEMENT

(1.) THE following substantial question framed at the time of admission of this second appeal is required to be answered.

(2.) THE short facts that gave rise to aforesaid question are as follows - -In Schedule A of the plaint there are different plots, namely, plot Nos. 326, 331, 483, 484, 575. 581. 1531. 2849, 2850, 2196, 3284, 3294, 3292 bearing total are of 0.89 acres appertaining to Khata No. 205 in Mazua Bhagsuma within the P.S. Govindpur district Dhanbad. According to the plaintiff these lands were purchased by two persons namely Budhu Kumhar and Bhikhu Kumhar from one recorded tenant Sitaram and after the purchase the aforesaid two persons Budhu Kumhar and Bhikhu Kumhar exercised their diverse acts of possessions over those plots and in the year 1974 Budhu Kumhar dies leaving behind his wife Punia Dasi and one son Goraehand Kumhar (defendant No. 1) and a grand -son of his predeceased son Sadhu Kumhar and his wife Kamla Devi and a grand -daughter Latika Dasi and two daughters, namely Alia Dasi and Sajni Dasi, Bhikhu Kumhar also died twenty years back leaving behind his heirs, namely, Sunia Bala Dasi and three sons, namely Kanhai, Mahanand and Mahadeo Kumhar (All those heirs of Budhu Kumhar and Bhikhu Kumhar have been made defendants 1 to 11 in the suit). Thereafter all of them remained in joint possession and Goraehand and Nimai Kumhar conveyed their interest while joint in possession in the plots Nos. 483 and 484 measuring 0.11 dismals to the extent of their share to plaintiff No. 1 by a Registered sale deed dated 9.4.1980 (Exhibit -2) and similarly. Milani Bala Dasi plaintiff No. 2 who is the wife of plaintiff No. 1 has purchased by a registered deed dated 16.3.1983 from Sunia Bala Dasi wife of Bhikhu Kumhar the land to the extent of her share in the aforesaid two plots 483 and 484 (Exhibit - 2/a). Thereafter the plaintiff Nos. 1 and 2 came in Khas possession to the extent of their purchase in the aforesaid plots along with other co -sharers and cultivated it. Further case of plaintiff is that as the value of the land has escalated and it has become difficult for him to enjoy the property along with other co -shares a partition is required, consequently the plaintiff filed a partition suit for a decree of partition in respect of plot Nos. 483 and 484 to the extent of 0.11 dismals.

(3.) THE main issue before the trial Court was whether the plaintiff was entitled for a decree as claimed for? On consideration of the evidence oral and documentary, and also considering the evidence of PW 1 who is also defendant No. 1 the trial Court dismissed the suit as it found the following facts on evidence : - -