MIHIR CHANDRA PANDEY Vs. CHANDI CHARAN PANDEY

JUDGEMENT

(1.) THIS appeal filed by the appellant is against the common judgment dated 8-9-2000 passed by the Sub Judge II, ghas in Title (Partition) Suit No. 36 of 1996 and Title (Eviction) Suit No. 23a of 1996 and title (Eviction) Suit No. 23b of 1996.

(2.) THE two title suits for eviction vide Title (Eviction) Suit No. 23a of 1996 and 23b of 1996 was filed by the respondent No. 1, chandi Charan Pandey, against the present appellant Mihir Chandra Pandey and against gyanda Pandey, (respondent No. 3) herein, for their eviction from the premises mentioned in the Schedule to the plaints. Title suit 36 of 1996 was filed by the appellant Mihir Chandra Pandey against the respondents for partition seeking 1/4th share in the suit properties. 2a. Facts of the case pertaining to Title suit No. 36 of 1996 are as follows :

(3.) THE suit for partition was filed by the present plaintiff/appellant against the respondents who are brothers, seeking partition of the purported joint family property mentioned in the schedule to the plaint and claiming 1/4th share in the said properties. His contention is that his father Devendra pandey acquired his share in the ancestral property on partition from his co-sharers and in addition to the share in the lands, the father and brother Balram Pandey (respondent no. 2) used to run a shop, which used to yield a reasonable income. The father devendra Pandey after selling away the ancestral properties purchased land in the name of his eldest son Chandi Charan pandey (respondent No. 1) at Chas. which has been fully described in the Schedule B to the plaint. Furthermore, out of the joint family income and the income earned from the shop, a dwelling house was also constructed on the lands purchased at Chas and after construction of the house, devendra Nath Pandey shifted his family to chas where he died eventually. It is claimed by the plaintiff that Devendra Pandey along with his sons and daughter was living joint in mess and property and even after his death, all his four sons continued to remain joint. The plaintiff has claimed that the parties are governed by Mitakshara of Hindu law. Further case of the plaintiff is that his brother Chandi Charan Pandey (respondent no. 1) sold 3 decimals of land in plot No. 7790 situated at the native village, to one bipin Chandra Mahato, while his other brother Gyanda Pandey (respondent No. 3)also sold 4 decimals of land in plot No. 7789 to one Gauri Shankar Tiwary. Both the purchasers were impleaded as defendants in the suit. The plaintiffs further case is that he was served with a legal notice dated 11-2-1996 sent by respondent No. 1 alleging therein that house at Chas (described as item No. 3 in Schedule B) was the exclusive property of respondent No. 1 and that the plaintiff and his brother Gyanda Pandey were in occupation of the said house of respondent no. 1 as licensees and demanding their eviction from the house. The plaintiff served a counter reply claiming that the house was a joint family property and not the exclusive property of respondent No. 1 and had demanded 1/4th share in the house property, besides share in other properties of the family mentioned in Schedule B to the plaint. The respondent No. 1 was the sole contesting party, who vide his written statements had denied and disputed the entire claim of the plaintiff. The other defendants did not offer any contest to the plaintiffs claim. On the contrary, they filed written statements admitting the whole case of the plaintiff and supporting his case. The case of the contesting defendant/ respondent No. 1 is that the property as mentioned in Schedule b to the plaint are not the joint family property, but his self-acquired property. His assertion is that his father Devendra Pandey did never acquire any property at Chas, since he had no income of his own and he (respondent No. 1) being an employee of the u. Co Bank had acquired the properties both at Chas and also at his native village out of his own income and as such the said properties cannot be subject to any partition. Laying specific claim of right over properties mentioned in item Nos. 1,2,3,5 of Schedule B to the plaint, respondent No. 1 has claimed that the lands mentioned in item no. 3 of the Schedule B was purchased by him with finance borrowed from the UCo bank and the house thereon constructed by his exclusive earnings. His two brothers namely plaintiff Mihir Pandey and respondent No. 3 gyanda Pandey were unemployed and were sitting idle and as such he had allowed both of them to live in his house at chas as licencees. Later, when he found that both the brothers were scheming and indulging in evil designs to usurp his property, he had served legal notice on both of them, demanding their eviction from his house and on their failure to vacate the house, he had instituted the suit for eviction against his brothers which were registered as Title (Partition)Suit No. 23a of 1996 and 23b of 1996 respectively. Further case of the defendant/ respondent No. 1 is that his father, Devendra pandey used to occasionally visit and stay at his house at Chas and it was therefore that the father's name came to be recorded in the voters' list at Chas in addition to his name in the voters' list at his native village. The defendant No. 2 Balram Pandey (respondent no. 2) while supporting the case of the plaintiff had claimed that he was engaged as a Compounder at Ranchi since 1975-77 and from his earning he had contributed to the joint family. Later on, he along with his father. Devendra Pandey opened a shop at their native village and from the income derived from the shop and from the agricultural produce of the lands at the native village, the entire members of the family used to be maintained and after meeting the family expenditure, they used to have substantial savings. Later on, in order to ensure that the plaintiff should settle, the respondent No. 2 left the shop after hand-ing over the charge of the same to the plaintiff in the year 1980 and shifted to Dhanbad in a rented house and worked as an advocate's clerk and from his earnings, he had contributed a major share to his father at the time of purchase of the land at Chas and also at the native village and had also contributed substantial amount in construction of the house at Chas which stands in the name of the respondent No. 1 and in the name of all other brothers including respondent No. 2. His further assertion is that his other brothers had also contributed money to their father and has claimed the entire property in the Schedule B to the plaint as the joint family property.