PURAN MAHTO Vs. BUDHANI DEVI

JUDGEMENT

(1.) THIS is the plaintiffs' appeal against the judgment: and decree dated 28.8.93 (decree signed on 7.9.93) whereby the plaintiffs' suit for partition has been dismissed in partition Suit, No. 9/90. The plaintiffs in the said suit had prayed for partition of their13/18th share in the Schedule 'A' & 'B' properties described in the plaint. The plaintiffs' case in brief is that Bahadur Mahto the common ancestor of the oarties had acquired the lands of Khata No. 41 of village -Paplo, P.S -Nawadih, District -Giridih (now Bokaro) which was recorded in his name in cadastral survey records of rights. The land of Khata No. 41 is fully described in Schedule 'A' of the plaint. Bahadur Mahto had acquired another item of property i.e. the land of Khata No. 46 along with Bhikchuk Mahto and sons of Madari Mahato. The said land is described in Schedule 'B' of the plaint. The land of Khata No. 46 was jointly recorded in the names of the said persons in cadastral survey records of rights each with 1/3rd equal share.

(2.) THE defendants contested the suit and in their written statement stated, inter alia, that the suit is barred under the several provisions of law and the suit is barred for nonjoinder of patty and the suit has been filed without any cause of action and that there was previous partition end there was no unity of title and possession among the parties. However, it was admitted that the land of Khata No. 4l was acquirea by Bahadur Mahto and he was the common ancestor. In the land of Khata No. 46 Bahadur Mahto hud 1/3rd share. Bahadur Mahto died leaving behind his sons, Bodhi Mahto, Harkhu Mahto and Puran Mahto who inherited and possessed the lands. But the specific case of the defendants is that the joint family was separated and was in exclusive possession of the lands allotted to their respective shares since 1960 except the land of Plot No. 1334 under Khata No. 41 which was also partitioned in the year 1972. The defendants have admitted the transactions by the plaintiffs and Bodhi Mahto and after the death of Bodhi Mahto, his share was inherited by his widow and daughters. It was further stated that Patwa Devi sold the entire share of Bodhi Mahto to her daughter Budhani Devi (defendant No. 1) by two registered sale deeds with the consent of her other daughters. Budhar Devi was put in exclusive possession of the said land and she also got her name mutated and has been paying rent to the State of Bihar to the knowledge of all concerned. The defendants denied the statement that after the death of Bodhi Mahto, his heirs came in joint possession with other co -sharers. The plaintiffs also denied the execution of the sale deed in favour of the defendant No. 1 for more than her share. Two daughters o Bodhi Mahto, Bhagia and Sugani accepted money in lieu of their respective shares prior to execution of the Sale deed by Patwa Devi in favour of Budhani Devi. Although the plaintiff No. 1, the defendant Nos. 39 & 40 and the husband of the plaintiff No. 6 have purchased the lands from Budhani Devi (defendant No. 1) on the basis of the sale deeds executed by Patwa Devi in favour of Budhani Devi, they have denied that the sale deeds executed by Budhani Devi have any infirmity or the same are void. The defendants claimed that all the plots were divided prior to the execution of the sale deeds by Patwa Devi and the purchasers are in peaceful cultivating possession of the said plots. The purchasers from Budhani Devi had purchased the specific plot with specific boundary. The purchasers also themselves had purchased the partitioned land of Khata Nos. 40. 41 & 46 by metes and bounds. The sons of Harkhu Mahto also partitioned the allotted land of their father among themselves and there has been separate dealings by the members. The defendants have denied the correctness of the genealogical table and the claims made in the plaint. The defendants have contended that the lands are partitioned by metes and bounds in he year 1960 and the parties are in actual and Khas possession of their respective shares. The purchasers from the co -sharers have been in peaceful possession of their purchased lands and they have got their names mutated and they are paying rent separately. The defendants submitted that the suit for partition is thus not maintainable and is fit to be dismissed. Learned Trial Court, on the basis of the said pleadings of the parties framed the following issues:

(3.) EXTS . 1 -1/b are the rent receipt of Khata No. 41 in the name of Bodhi Mahto and others. Certified copies of as may as 30 sale deeds have been brought on record and marked as Ext. 2 series.