Judgement

JUDGMENT :- The present appeal is directed against the judgment and order of the High Court dated 23rd September, 1987 in first appeal where the High Court set aside the trial Court judgment by which plaintiffs-respondents suit was dismissed.

2. In order to appreciate the controversy we are herewith giving certain essential facts. The plaintiffs-respondents case is, both parties devolve from common ancestor, namely, Pandey Kishan Ram. The genealogical table is reproduced below to understand the relationship between the parties.

3. The plaintiffs case is, both parties are joint and jointly cultivating the suit land hence suit for partition by metes and bounds. Because of denial of such right by the principal defendant (Defendant No. 1) who is appellant before us, the present suit is filed. The suit property devolved from the ancestral is not in dispute. In the year 1930 according to principal defendant, partition took place giving 1/3rd share each to the aforesaid three branches shown in the genealogy. Thus as per the partition, Pandey Lallu Ram of the first branch got 1/3rd share, Bansi Ram Pandey and Gopi Ram Pandey of the second branch got separate takhta of their 1/3rd share while Pandey Sukdeo of the third branch got 1/3rd with Rajwanti Kuer as maintenance holder.

4. The case of the appellant is, after the death of Sukhdeo Ram in the year 1934 under a Will Smt. Rajwanti Kuer became the sole owner of land of 1/3rd of the third branch. Lateron Rajwanti Kuer made raiyati settlement of plot No. 1542 having an area of 0.22 acres with Jadunandan Choudhary as far back in the year 1942. After vesting of the zamindari interest in the State of Bihar under the Bihar Land Reforms Act and in terms of the said transfer in favour of Jadunandan Choudhary his name is recorded in Register II of the State of Bihar and he has been regularly paying rent to the State of Bihar. Smt. Rajwanti Kuer transferred her entire estate to the extent of her 1/3rd share, excluding what she transferred earlier to Jadunandan Choudhary through two registered sale deeds dated 23rd May, 1950 and 19th June, 1952. The case of the appellant is that in spite of full knowledge of the plaintiffs about partition in the year 1930 2694 and the transfers made by Smt. Rajwanti Kuer, they have included all these lands in their claim in the partition suit. Since Rajwanti Kuer sold her entire interest in the property in favour of present appellant through the aforesaid two registered sale deeds, inclusions of these properties in the suit is without any foundation. In fact, as a consequence thereof, the present appellant came in possession of the land possessed by the said Rajwanti Kuer. Rajwanti Kuer died on 20th December, 1957. It is also submitted, in any case after coming in force of the Hindu Succession Act, 1956 on 17th July, 1956 she became absolute owner of the said property. The case set up by the present appellant before the trial Court was that after vesting of the land in favour of the State of Bihar under the aforesaid Bihar Land Reforms Act on 26th January, 1955, the plaintiffs have been filed return in K form. Further plaintiffs knew that they had only 1/3rd share in the zamindari property, so they were filing returns for their 1/3rd share only in form K while present appellant was filing return for his 2/3rd share, 1/3rd for his own of the second branch and 1/3rd having received from Smt. Rajwanti Kuer of the third branch through two sale deeds as aforesaid. On the contest of the parties five issues were framed which are recorded hereunder.

1. Has the plaintiff any cause of action for the suit?

2. Is the suit maintainable as framed?

3. Is there unity of title and possession between the parties?

4. Is the suit barred by previous partition?

5. To any other relief or reliefs to which the plaintiffs may be entitled.

5. The main issues are Issue Nos. 3 and 4 which refer to unity of title and possession between the parties and the question whether the suit is barred