CAV JUDGMENT

Date : 11-01-2024 The instant petition has been filed against the order dated

12.02.2018 passed by learned Sub-Judge-IInd, Bhabhua in Title Suit No. 90 of 2003 by which the petition dated 23.11.2015 filed on behalf of the petitioner under Order VI Rule 17 and Section 151 of the Code of Civil Procedure for the amendment of written statement, additional written statement and counter claim was partly allowed and was partly rejected in respect of certain amendment in the additional written statement.

2. The facts of the case as it appears from the record is that the petitioner and respondent no.1 are full brothers. Respondent nos. 2 and 3 are sons of respondent no.1 The plaintiff/respondent filed a suit for partition in respect of properties said to be the joint family property in the court of learned Sub-Judge-Ist, Bhabhua on 07.05.2003 vide Title Suit No. 90 of 2003. Petitioner is defendant no.1. The plaintiffs and the defendants are the descendants of late Shyam Sunder Singh. The plaintiffs claimed that they are members of joint family and the plaintiff no.1 is the karta of the family. The defendant nos. 1 to 3 are also the members of joint family and the defendant no.1 is the karta. The plaintiffs claimed in their plaint that the properties described in Schedule ‘Ka’ and ‘Kha’ of the plaint are joint family properties which have not been partitioned by metes and bounds. The father of plaintiff no.1 and defendant no.1 died in 1971 in jointness and their mother died on 20.10.2001. The plaintiffs further claimed that the plaintiffs and the defendants separated in mess and residence and started cultivating their land separately for last few years but no partition has taken place between the two sides by metes and bounds. Out of joint family fund, a piece of land at Bhabhua was purchased and a house was constructed by joint family fund. After the death of the mother and sister of plaintiff no.1 and defendant no.1, they inherited their share. During land ceiling proceeding, sale deed of Paras Nath Singh and Shambhu Singh was held illegal and the possession of the family of the plaintiffs was declared on the said land and it was held to be their property. The plaintiffs further claimed that father of the plaintiff no.1 and defendant no.1 during his lifetime on 07.08.1962 gifted 25.62 acres to defendant no. 4 and 20.87 acres to mother of plaintiff no.1 by deed nos. 5325 and 5322 and put the donees in possession thereof. For this reason he had no right to execute gift deed no. 5328 dated 07.08.1962 in the name of defendant no. 1 who was a minor at that time and the said document is a void document. Defendant no.1 never came into possession of the said land. In this manner, plaintiffs claimed 5/12 share in the suit properties and prayed for a decree for partition.

The petitioner/defendant no.1 and his elder son/

defendant no.2 appeared in the suit and they filed their joint written statement on 24.02.2004. The defendants claimed that plaintiffs and defendants separated in mess, residence and cultivation in 1979. The properties described in Schedule-‘Kha’ of the plaint were allotted to defendant no.1 and his sons by oral partition. Further, the properties of Schedule-‘Ka’ are not joint family property. Some of the properties of Schedule-‘Ka’ are the acquired property of defendant no.1 through gift. One of the properties was sold by the father of plaintiff no.1 and defendant no.1. The defendant no.1 is coming into possession of self-

acquired property and the same was not liable to be partitioned. The defendant further claimed that mother of defendant no.1 died in June, 1989 while residing in her matrimonial home. The defendant further claimed that plaintiffs have deliberately left to include joint property in Schedule-Ka’ situated at Akhlaspur having total area of 5 acres of Plot No. 3166, Khata No. 930 which is purchased property of Shyam Sunder Singh. Mother of plaintiff no.1 and defendant no.1 was not allotted separate unit