KRISHNA CHANDRA MAHTO Vs. NIRANJAN MAHTO

JUDGEMENT

(1.) THIS appeal at the instance of the defendants -appellants is directed against the judgment and decree dated 2.2.85 passed by the Additional District Judge, Singhbhum at Chaibasa in T.A. No. 11/82 whereby he has reversed the judgment and decree dated 27.3.82 passed by the Subordinate Judge, Chaibasa in Title Partition Suit No. 25/80 and decreed the suit.

(2.) THE plaintiffs -respondents filed the aforementioned suit for partition of the properties described in Schedule 'B' and for 'C' of the plaint and for carving out 1/4th share out of the suit property. Plaintiffs' case, inter alia, is that both parties are the defendants of one common ancestor, Bidu Mahto who had four sons, namely, Gadai Mahto, Akhu Mahto, Bhikhari Mahto and Janardan Mahto. Gadai Mahto pre deceased his father, Bidu Mahto and left behind him a son named Baidyanath Mahto who is defendant No. 1, Bhkihari Mahto is defendant No. 2 and Janardan Mahto is the plaintiff. It is alleged by the plaintiffs that Bidu Mahto died 25 years ago leaving behind three sons Gadai Mahto, Bhikhari Mahto and Janardan Mahto and a grand son, Badyanath Mahto. After his death his sons and grand son inherited the property described in Schedule B of the plaint and they have been coming in possession thereof without any partition by meets and bound. They, however, cultivated most of the lands separately according to their convenience. It is alleged that Schedule B property were recorded jointly in the name of the plaintiffs, defendant No. 1 and 2 and late Akhu Mahto the father of defendant Nos. 3, 4 and 5 under khata No. 87 of the present survey of 1961. Their separate possession has been noted in the remark column of the said khatiyan and they have been cultivating the land as per their convenience. It is further alleged that Akhu Mahto, one of the sons of Bidu Mahto died about 10 years ago leaving behind his sons. So far Schedule C property is concerned, plaintiffs' case is that those properties had been acquired by the parties jointly and they have been coming in possession of the same. The plaintiffs, accordingly, claimed -1/4th share in Schedule B and C property.

(3.) THE trial court framed the following issues for consideration and decided all the issues in favour of the defendants and dismissed the suit. The issues are: