JHAMAN YADAV Vs. MAHANGU YADAV

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment dated 17.12.1998 passed by learned Single Judge in First Appeal No. 31 of 1988(R), whereby the aforesaid appeal has been allowed and the judgment and decree passed by Sub -Judge, Palamau at Daltonganj in Partition Suit No. 53 of 1984 has been set aside. Consequently, the suit was decreed.

(2.) PLAINTIFFS /respondents filed aforementioned suit for partition of one -third share in the suit land comprised within Cadastral Survey Khata no. 35 of village Pachmo and C.S. Khata no. 12 of village Pandaria. Plaintiffs' case, inter alia, is that Lodi Ahir was common ancestor of the parties. Lodi Ahir had five sons namely, Bandhu, Mewa, Gopi, Dallu and Fulchand. Plaintiffs are the descendants of Fulchand, whereas defendants are descendants of Bandhu and Mewa. According to the plaintiffs, Lodi Ahir lived in village Pachmo and he owned and possessed lands in village Pachmo, Pandaria and other villages in the district of Palamau at Daltonganj. Before the last Cadastral Survey, Gopi and Dallu separated from Lodh and were allotted lands in other village and whereafter they settled there. Dallu died issueless. Bandhu and Mewa remained joint with their father Lodi and assisted him in cultivation of the suit land. Plaintiffs' further case is that Lodi died in 1913 -14 before the commencement of Cadastral Survey operation leaving behind his two major sons, namely, Bandhu and Mewa and one minor son Fulchand. After his death Bandhu became the karta of the family. In the C.S. operation, Bandhu and Mewa were recorded raiyats in respect of the suit land. Bandhu, Mewa and Fulchand died one after another while living jointly. After their death, their sons jointly owned and possessed the ancestral land including the suit land. It is alleged by the plaintiffs that they are living in the ancestral house in village Pachmo. Defendant nos. 1 to 5 in the Revisional Survey Operation became hostile to the plaintiffs and even denied their right and ownership over the suit lands. In spite of the demands made by the plaintiffs, the defendants did not amicably partition the suit lands. Hence, the necessity of the suit for partition of the one -third share of the plaintiffs in the suit properties.

(3.) THE Trial court framed the following issues for consideration: