MUNGESHWAR SAHOO, J.:–The contesting defendants have filed this First Appeal against the Judgment and Decree dated 13 Feb., 1981 passed by the learned Subordinate Judge, Gopalganj in Title Suit No.43 of 1976 whereby the Court below decreed the plaintiff respondent’s suit.

2. The plaintiffs respondents filed the aforesaid suit for partition of total 5 biggha 17 katha land on the facts inter alia that 10 biggha 18 katha 8 dhur was recorded in the name of Ramawtar Rai, Jamuna Rai, Ramsewak Rai and Jangli Rai the four sons of Ram Swarath Rai described in schedule 1 & 2 of the plaint. Plot No.602 729 are recorded in the name of four sons and also one Mohit Rai and another Ramdhari Rai detailed in Schedule 3 of the plaint. The property acquired by Ramsewak Rai is described in Schedule 4 of the plaint. Schedule 5 includes all lands.

3. The further case of the plaintiff is that after revisional survey, one son Yamuna Rai died in jointness without any issue. Ramawtar Rai and Ramsewak Rai died in the year 1934 and 1946 respectively leaving behind Basmato Kuer and Lakho Kuer respective widows. Ramsewak had also two daughters Sonia who is plaintiff No.2 and Kauleshari, defendant No.2. They came in joint possession of the property whereas Mostt. Basmato was only maintenance holder. Subsequently, Lakho Kuer also died on 4.9.1975 leaving behind two daughters. The two daughters were married and plaintiff No.1 is the son-in-law of Lakho Kuer, i.e., husband of plaintiff No.2.

4. The further case is that plaintiff No.1 and plaintiff No.2 were living with Lakho Kuer so, out of her free will, Lakho Kuer gifted the property by executing and registering a gift deed on 08.04.1964 to plaintiff No.1 and put him in possession. The further case is that subsequently, the plaintiff learnt that defendant No.3, Jangli Rai in collusion with Basmato executed fraudulently a Danpatra deed in the name of Ram Janki, the idol although there is no Mandir in the village and Jangli became Mutwali of Mandir and he wants to grab the property. Partition was demanded and on the refusal, this suit was filed. The plaintiffs claim 3 bigha 3 katha 16 dhur in schedule 1, 2, 3 and 4 on the basis of gift deed in favour of plaintiff No.1 and 3/16th share in Schedule 3 and 4 of the plaint.

5. The defendant No.3 and 4 filed contesting written statement. Besides taking legal and ornamental please, mainly it is contended that Ramawtar Rai died in the year 1938 and not in the year 1934, therefore, Basmato Kuer became the limited owner according to Hindu Women Right to Property Act, 1937 and she became absolute owner after coming into force of Hindu Succession Act, 1956. Therefore, she was not a maintenance holder. Ramsewak Rai died in the year 1934 issueless leaving behind only widow Lakho Kuer. According to the defendants Sonia and Kauleshari are not the daughters of Ramsewak Rai. In fact they are daughters of Lochan Singh of village Himmatpur. Lakho Kuer was only a maintenance holder. She has not executed any gift deed. Some another lady executed the gift deed as such the gift deed is fraudulent, farzi and void document. By that gift deed, no title passed to the plaintiff No.1. The plaintiffs have no concern with the family of Ramsewak Rai. After death of Ramsewak, the defendant No.3 and 4 are in possession of the land as such they have perfected their title by adverse possession.

6. The defendant No.5 and 5A have filed supporting written statement supporting the plaintiff. Formal written statement has filed by minor defendants.

7. On the basis of the aforesaid pleadings of the parties, the learned trial Court framed the following issues :—

(a) Is the suit as maintainable?

(b) Have the plaintiffs got any cause of action for the suit?

(c) Whether plaintiff No.2 and defendant No.2 are daughters of Ramsewak Rai?

(d) When did Lakho Kuwar die?

(e) Whether alleged deed of gift was executed by an imposter or by Lakho Kuwar?

(f) Whether plaintiffs have got unity of title and possession along with defe

Click Here to Read the rest of this document