The central legal point established in the judgment is the requirement of unity of title and possession in determining the entitlement to share in joint property under Hindu law.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 04.12.2015 passed by the learned District Judge-V, Jamshedpur in Title (P) Appeal No. 26/2009 whereby and where under, by the said judgment of concurrence, the learned first appellate court has dismissed the appeal and upheld the judgment and decree passed by the learned trial court being the court of Subordinate Judge-VI, East Singhbhum, Jamshedpur in Title (P) Suit No. 80 of 2003 dated 28.09.2007.

3. The case of the plaintiffs in brief is that the plaintiffs and the defendants are co-sharers and descendants of common ancestor Budhu Mahto and they are governed by Mithakshara School of Hindu law. The suit property is still joint at the time of filing of the suit. Bistu Mahto was the karta of the family and all the documents in respect of the suit property were in his possession and he was looking after the affairs of the joint property and now these documents are in possession of the grandsons of Bistu Mahto who are defendant nos. 1 and 2. It is the further case of the plaintiffs that due to expansion of the family, they became separate in mess but the lands are still joint amongst the parties to the suit and parties are cultivating the suit land according to their convenience. The defendant nos. 1 and 2 have disposed of the valuable lands of the family without the consent of the plaintiffs and caused irreparable loss to the plaintiffs. So it became impossible for the plaintiffs to continue in jointness. The plaintiffs claimed their 1/9th share i.e. 1/18th share each of the suit property.

4. The contesting defendants being the defendant nos. 6, 7 and 8 challenged the maintainability of the suit on various technical grounds including non-joinder of necessary parties being the persons who have purchased the property from these defendants. They denied the jointness of the suit property though they admitted the genealogy. These defendants pleaded that the suit property has been partitioned in the year 1935 and the three sons of Budhu Mahto got their respective shares and the sons of late Kisto Mahto being Iswar Mahto, Anant Mahto and Badan Mahto came in possession of plot nos. 6, 7 and 8 of khata no. 29 measuring about two acres of land of mouza-Bagalgora. These defendants further pleaded that since the property has been partitioned in the year 1935, so, separate possession of the co-sharers has been shown in the record of right of the year 1937 in the remarks column. These defendants denied that Bisto Mahto was ever the karta of the family or being in possession of the document of the suit property by Bisto Mahato or his grandsons.

5. On the basis of rival pleadings of the parties, the learned trial court framed the following five issues:

(I) Is the suit as framed maintainable and has the plaintiff valid cause of action for the same?

(II) Is the suit suffers from defect of parties?

(III) Is there any unity of title and possession between the parties?

(IV) Is the plaintiff entitled to 1/18th share each in the suit property as claimed?

(V) To what other relief and reliefs the plaintiff are entitled for?

6. The learned trial court first took up issue nos. (III) and (IV) together and after considering the evidence in the record came to the conclusion that the earlier partition in respect of the property has already taken place between the parties hence, the claim of jointness of title and possession of the plaintiffs fails and since there is no unity of title, possession and interest between the parties with respect to the suit land hence, the plaintiffs are not entitled to get any share in the suit property. Thereafter, the learned trial court took up issue nos. (I) and (II) together and held that the suit is bad for non-joinder of necessary party, being the persons who as per the claim of the plaintiffs having been purchased the portion of the suit land from the de