JAGESHWAR GOPE Vs. JUMINI DEVI

JUDGEMENT

(1.) THIS appeal at the instance of the defendant -appellant has been preferred against the impugned judgment and decree dated 18.10.2002 and 29.10.2002 respectively passed in Title Appeal No. 28 of 2000 by Shri Binod Kumar Lal, Additional District Judge, Fast Track Court No. 4, Hazaribagh whereby and whereunder the judgment and decree of the trial Court passed in Title (Partition) Suit No. 79 of 1995 were set aside and appeal was allowed and the case was remitted to the trial Court for a fresh decision.

(2.) THE plaintiff -respondent had filed the said suit for declaration of the registered deed of gift dated 15.4.1988 executed by the original defendant No. 1 in favour of his wife defendant No. 2 as null and void and collusive as the original defendant No. 1 was not competent to execute the deed of gift and the said deed of gift is not binding on the plaintiff and also for partition of the suit property detailed in Schedule -A of the plaint for carving out his half share therein by appointment of the Survey Knowing Pleader Commissioner. The suit land appertains to Plot No. 902 of Khata No. 6 and Plot Nos. 903 and 907 of Khata No. 2 having an area of 1.71 acres situate at village Lodahama, Police Station Ramgarh, District -Hazaribagh,

(3.) THE case of the defendant -appellant, inter alia, is that in the life time of Chamu Gope all his four sons were separate and according to their physical possession of the land, the cadastral survey records of right was prepared. Khedan Gope died issueless in the year 1932 and after his death, the ex -landlady resumed the suit land and thereafter original defendant Bansi Gope in auction sale made by the ex -landlady got settlement of the suit land on 31.3.1948 (Sambat 2003) and there was no unity of title and possession between the parties over the suit land and none of the sons of Chamu Gope was ever joint. It is alleged that Nanhak Gope died issueless in the year 1940 and Bhukhlal Gope died in the year 1938 leaving behind his widow and one daughter Rukhni married to Bahira Gope, who settled as gharjamai inherited the properties left by Bhukhlal Gope. It is also alleged that Bishun Gope died in the year 1958 leaving behind his three daughters and they had right to get partition of the land of Khata Nos. 38, 39, 9 and 48 and other Khatas which have not been brought by the plaintiff in the suit as suit properties and the case of the plaintiff is not maintainable for partial partition. It is alleged that the survey authority at the time of the cadastral survey after enquiry recorded the suit land appertaining to Khata Nos. 2, 6 and 9 in the name of. Khedan Gope who died issueless. The suit land were abandoned and as such the landlady resumed the suit land and thereafter taking Salami settled the suit land with Bansi Gope and since then he is in exclusive possession over the same as of his rights and he has rightly executed a deed of gift in favour of his wife defendant No. 2 and the said deed of gift is valid, legal and in accordance with law and the suit lands stands mutated in the name of defendant No. 2 after proper enquiry. It has also been alleged that the suit of the plaintiff is bad for non -joinder of all co -sharers including the three daughters of Bishun Gope and they are the necessary parties to the suit and in their absence, the suit is not maintainable.