RAMNATH SAO ALIAS RAMNATH SAHU Vs. GOBERDHAN SAO

JUDGEMENT

(1.) THIS appeal by the defendant -appellants is directed against the judgment and decree dated 31 -5 -1989 passed by Subject III, Hazaribagh in Partition Suit No. 77/80 of 1966/88 whereby the plaintiffs' suit has been decreed in part.

(2.) IN the aforesaid suit the plaintiffs -respondents sought a decree for partition and claimed sixty two and half paise share in the properties of village Lapunga detailed in Schedule B and item Nos. 1 to 8 of Schedule C properties and share to the extent of 13 -4/5 paise item No. 9 of Schedule C properties.

(3.) DEFENDANT Nos. 1 to 10 filed their written statement alleging that the suit for portion is not maintainable and the same is bad for non -joinder and mis -joinder of parties. Defendant's case is the Ugani Devi, daughter of Fuchan Mahto is the necessary party to the suit. There is no unity of title and possession between the parties. The suit has not been properly valued. The defendants have denied and disputed the allegation of joitness and unity of title and possession. The case of the defendants is that after the death of Mithu Sao or even before there were disruption in the family by reason of his having married two wives one after another. There was serious difference in the family. The children of the first wife separated from Mithu Sao. After the death of Mithu Sao the brothers again separated. The sons of the first wife separated from the sons of the second wife. There was no joint family and both the parties have separate earnings. Only the ancestral lands of Khata No. 19 are available for partion. Major portion of the ancestral land was acquired by the Government and compensation amount was divided among the parties according to their shares. Defendant's further case is that they acquired properties of Item No. 9 Schedule C by eight separate sale -deeds. All the acquisitions in the name of the members of the family or others are their self acquired properties which any aid and assistance from the joint family. As a matter of fact, the joint family had no sufficient nucleus and the acquisitions were never made out of the said nucleus or out of the joint family funds. It is stated that the lands of Khata No. 1 of village Rasda exclusively belongs to Chinta Devi and the land of Item No. 7 belongs to Ghurni Devi. These properties are not joint family properties. Defendant's further case is that the land of village Gegda measuring 1.56 acres of plot No. 117 under Khata No. 2 were jointly acquired by plaintiff No. 4 and defendant No. 4 but subsequently there was division in the aid property and both plaintiff No. 4 and defendant No. 4 are in separate possession of this land. The defendants in their pleadings have described the manner of acquisition of all those properties separately and out of their own income.