DILIP OJHA Vs. INDRA NARAYAN MISHRA

JUDGEMENT

(1.) Heard Mr. Ajay Shankar, learned counsel for the appellants in Second Appeal No.04 of 2005 and Mr. S.K. Sahay, learned counsel for the appellant in Second Appeal No.33 of 2005, Mr. Lakhan Chandra Roy, learned counsel for respondent no.1 and Mr. Arvind Kumar Choudhary, learned counsel for respondent no.2.

(2.) Both the second appeals have been filed for setting aside the judgment and decree passed by the learned 3rdAdditional and District Judge (F.T.C.), Jamtara dtd. 30/11/2004/16/12/2004 in Title Appeal No.7 of 1992/12 of 2004 by which he has been pleased to allow the appeal filed by defendant-1stparty and set aside the judgment and decree passed by the learned Sub Judge, Jamtara in Title Suit No.36/1980 dtd. 10/2/1992/ 20/2/1992.

(3.) The plaintiff instituted the suit for partition against defendant no.1, defendant 2ndparty and defendant 3rdparty for a preliminary decree for 1/4thshare over A, B, C, D, E, F and G schedule properties of the plaint in favour of the plaintiff and against the defendants as well as for a final decree as per preliminary decree be prepared thereby appointing Amin Commissioner and for delivery of possession over the decreetal lands through process of the court and for a permanent injunction restraining the defendant 3rdparty not to disturb the possession of the plaintiff over any portion of the suit land. It was stated in the suit that the recorded tenant Larulal Tiwari had landed properties in several mouzas their description has been given in Schedule A to G of the plaint over an area measuring of 118 acres. The said recorded tenants of Larulal Tiwari had only two daughters namely Sindhubala Davi and Kapur Bala Davi. The Larulal Tiwari died in the year 1950 leaving behind his widow namely Sumitra Devi and one daughter Kapur Bala and grand son namely Ram Bharosh Ojha and grand daughter Gulab Devi as Sindhubala Devi predeceased to her father- Laru Lal Tiwari. The further case of the plaintiff was that since the Laru Lal Tiwari had no sons, hence, he kept his two daughters, in his house alongwith his her husband namely Dharanidhar Ojha being the husband of Sindhubala Devi and Shankar Prasad Tiwari daughter and son and of Sindhubala Devi took birth at village Dhanjori and during their minority, their mother Sindhubala died and hence they have been looked after by their grandmother Sumitra Devi and mausi Kapurbala Devi. The further case of the plaintiff was so long Laru Lal Tiwari was alive the entire properties was in his exclusive possession and after his death his widow Sumitra Devi succeeded to the entire estate became absolute owner of the same after passing of Hindu Succession Act, 1956. It has further been stated in the plaint that after the death of Sindhubala Devi, her husband Dharanidhar Ojha brought his second wife into his house at village Dhanjori. From his second wife, five sons only took birth. The plaintiff has been married with on Indra Narayan Mishra of village Gaura in 1952 and Rambharosh Ojha being the son of Sindhu Bala Devi had been married with Putubala Devi in the year 1967 and after that Rambharosh Ojha became traceless and there is no trace found, though serious search is being made. It was the further case of the plaintiff that after the death of Larulal Tiwari relation between Dharanidhar Ojha and Shankar Prasad Tiwari became strain, so Sumitra Devi being the absolute owner of the suit land separated both of them thereby allowing some lands to be retained for maintenance of Rambharosh Ojha and Gulab Devi as both are minor at that time. Sumitra Devi being the absolute owner of the entire lands had died in January 1978 leaving her one daughter Kapurbala Devi and one son and daughter namely Rambharosh Ojha and Gulab Devi being the sons and daughters of her predeceased daughter- Sindhubala Devi as her next heirs and successors. It was further case of the plaintiff that after the death of Sumitra Devi relation between Shankar Prasad Tiwari and Dharanidhar Ojha became too strain resulting in several litigation. It was further stated in the plaint that the lands of Dharanidhar Ojha was entrusted to cultivate the land for the maintenance of Gulab Devi and her brother Rambharosh Ojha as both were the minors but subsequently Dharanidhar Ojha started mis-appropriating the major share of the produce which forbidden by the plaintiff and started cultivating the same with the help of her husband Indra Narayan Mishra. It was further case of the plaintiffs that Dharanidhar Ojha started quarrel with the plaintiffs as well as her husband with respect to the plot in question. In 1979, Dharanidhar Ojha again started creating trouble in the matter of harvesting for which a proceeding u/s 144 Cr.P.C. had also been enunciated and in the said proceeding Dharanidhar Ojha had filed show-cause claiming their prescriptive right, title and interest over the plot in question with a basis of forged and fabricated documents. The plaintiff's further case was that during the lifetime of Sumitra Devi, some lands were allotted to Dharanidhar Ojha only in lieu of maintenance of present plaintiff and her brother as both were minors hence the possession of Dharanidhar Ojha over the said plots shall be deemed to be permissive possession. The show- cause filed by Dharanidhar Ojha in proceeding u/s 144 Cr.P.C. as well as 107 Cr.P.C. claiming there independent claim over the suit land against the interest of the plaintiff and defendant no.1 and as such Dharanidhar Ojha along with his son from second wife have been impleaded as defendant 3 rd party in the suit for declaration that they have got no right over any portion of the suit property and also for permanent injunction against them. Since Rambharosh Ojha became traceless for many years and hence his wife Pratibala Devi being the sole heir of her husband has been impleaded as defendant 2ndparty. The properties described in Schedule-A to E are the Ejmal landed property residential house as shown in Schedule-F and Schedule-G described for Ejmal trees. The plaintiff's further case is that to avoid litigation, she approached defendant no.1 for amicable portion of the properties in suit in the month of March, 1980 but defendant no.1 expressed her inability and as such finding no option the plaintiff filed the suit for partition of the suit properties having 1/4thshare in the suit land along with other reliefs.