SURESH MAHTO Vs. SANT KUMAR MAHTO

JUDGEMENT

(1.) This appeal at the instance of the plaintiff-appellants is directed against the judgment and decree dated 21-6-1988 and 1-7-1988 respectively passed in Title Appeal No. 41 of 1976 by Shri Satyendra Singh, 4th Additional District Judge, Palamau at Daltonganj whereby and whereunder the appeal on remand was again dismissed affirming the judgment and decree dated 15-9-1976 and 3-11-1976 respectively passed in Partition Suit No. 3 of 1968 by Shri Shyam Narain Shukla, Subordinate Judge, Palamau.

(2.) The plaintiff-appellants had filed the said partition suit for partition of the joint family properties claiming, if share therein detailed in schedule of the plaint and allotment of a separate Thakta of their half share and putting them in exclusive possession thereof. The plaintiff-appellants have also sought further relief by way of amendment of the plaint that their title and possession in respect of properties appertaining to khata No. 34 of village Itko detailed in Schedule of the plaint be declared in their favour.

(3.) The case of the plaintiff-appellants, in brief, is that Ram Sewak Mahto is the common ancestral of the parties to the suit and he was the head and karta of the joint family consisting of the parties to the suit and he had acquired the suit lands by purchase. Said Ram Sewak Mahto had two sons, Raj Keshwar Mahto and Loknath Mahto. Original plaintiff No. 4-Maheshwari Kuar (since dead) is the widow of Raj Keshwar Mahto deceased. Original defendant No. 2- Fulmati Kuar is the widow of Loknath Mahto deceased aforesaid. Defendant/respondent No. 1 Sant Kumar Mahto is the son of Loknath Mahto, Raj Keshwar Mahto aforesaid had three sons, namely, original plafntiff No. 1-Brajnandan Mahto (since dead), plaintiff-appellant No. 2-Suresh Mahto and plaintiff-appellant No. 3-Chandresh Mahto. According to the case of the plaintiff-appel- lants-Raj Keshwar Mahto had predeceased his father Ram Sewak Mahto on 16-5-1946 and, thereafter, Ram Sewak Mahto also expired on 2-1-1947 whereas Loknath Mahto died in the month of Baishak of the year 1947. It is alleged that Ram Sewak Mahto acquired 11.76 acres of land of Khata No. 18 in auction sale benami in the name of defendant-respondent No. 1, Sant Kumar Mahto in the year 1938. It is also alleged that Ram Sewak Mahto purchased land of Khata No. 34 benami in the name of original defendant No. 2-Fulmati Kuar in the year 1945. The further case of the plaintiff-appellants is that Ram Sewak Mahto also purchased the land of Khata Nos. 3, 6/2, 7 and 5 in the benami name of original plaintiff No. 4-Maheshwari Kuar and all the aforesaid purchases were made by Ram Sewak Mahto from the joint family fund and thus all the descendants. Ram Sewak Mahto are jointly interested in the same and the share of the plaintiffs-appellant in the suit land is to the extent of half and the other half belongs to the defendants-respondents. It is also alleged that parties of the suits are separately cultivating the suit land for sake of convenience and there has been no metes and bounds partition between them regafding the suit property and the plaintiffs-appellants are feeling difficulties in making further improvement and proper utility of the suit land as it is joint between them.