IMPORTANT POINT
Title suit – Once constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition – Shares will have to be determined in changed scenario.

JUDGMENT (C.A.V.)

Heard learned counsel for the appellant, learned counsel for the respondent no.1 and learned counsel for the respondent no.4. No one appears on behalf of the respondent nos.2 and 3.

2. The instant appeal has been preferred against the judgment dated 23.3.2017 and decree dated 29.3.2017 passed in Title Suit no.3 of 2006 by the learned Sub Judge VII, Madhepura whereby the learned trial court was pleased to hold that there was jointness of title and possession of the plaintiff with the defendants over the suit property and that the plaintiff was entitled to 1/5th share in the ancestral property of her mother and father after their death. Learned trial court further held that the suit as framed was maintainable. She has valid cause of action, the suit was not barred under section 34 of the Specific Relief Act and thus decided the issue nos. 1, 2, 3 and 4 in favour of the plaintiff. The suit was allowed on contest ex parte against the defendant nos.1 to 3. It is against this judgment that the defendant no.1 has preferred the instant appeal.

3. The case of the plaintiff in brief is that Late Ramjee Sah and his wife Late Smt. Ram Dulari Devi, both deceased, were her parents and were having sufficient landed properties in Mauza Tulsiya, Sheikhpura and Baidyanathpur, details of which are given in Schedule I of the plaint. They had right, title and possession over the suit property. The names have been mutated in the records of the Revenue Department, they were paying rent and were being granted rent receipts. The plaintiff’s father died in October 2000 followed by the plaintiff’s mother on 6.2.2005. They died leaving behind three sons who are the defendant nos.1, 2 and 3 in the title suit and two daughters ie the defendant no.4 and the plaintiff. The defendant no.4 was married to one Birendra Sah. The plaintiff was married to Ashok Kumar Sah.

4. It is the case of the plaintiff that the plaintiff and the four defendants, on the death of their parents inherited the suit land as their sons and daughters, equally. Thus, the share of the plaintiff would be 1/5th in the suit property. It was further stated that a panchayati was held in the village in which the panches and the defendants accepted and acknowledged the status and character of the plaintiff having 1/5 share in the suit property and the defendants agreed to give to the plaintiff her share. However, subsequently the defendants turned down the plaintiff’s claim and the plaintiff was left with no other alternative except to file the instant suit for such a declaration by Court. It was submitted that the cause of action for the suit arose on 25.12.2005 when the 1/5th share of the plaintiff in the suit property was raised in the panchayati in the village and the same was acknowledged by the panches and the defendants. It also arose when subsequently the defendants refused to give the plaintiff her share. Thus with no other alternative, the plaintiff filed the suit in the Court of learned Sub Judge, Madhepura which was registered as Title Suit no.3 of 2006 praying therein for the following reliefs:—

“(I) That the court be pleased to declare that the plaintiff has got 1/5 share in the suit properties which were acquired by father and mother (now deceased) of the plaintiff and status and character of the plaintiff to the said extent may kindly be declared by the court and a preliminary decree for partition may kindly be passed in favour of the plaintiff.

(II) That after such adjudication the court be pleased to award cost of the suit to the plaintiff.

(III) That the any other relief or reliefs which your honour deem fit and proper may kindly be awarded to the plaintiff.

(1)(AA) The court be please further appoint Survey Knowing Pleader Commissioner to carve out 1/5th share of the plaintiff in the suit land at the cost of plaintiff.”

5. A written statement and a supplementary written statement was filed on behalf of defendant nos. 1 to 3 in Title Suit no.3 of 2006.