IN THE HIGH COURT OF JUDICATURE AT PATNA

FIRST APPEAL No.149 of 2017

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Lakshman Sah Son of Late Ramjee Sah, Resident of Village- Tulsia, P.O.-

Baijnathpur, P.S.- Bihariganj, District- Madhepura Bihar.

... ... Defendant No.1-Appellant

Versus

1.

Chandrakala Devi W/o Ashok Kumar Sah, D/o Late Ramdeo Sah, Resident

of Village- Tulsia, P.O.- Baijnathpur, P.S.- Bihariganj, District- Madhepura

Bihar. And at Present Village- Dibara Bazar, P.O.- Dibara Bazar, P.S.-

Barhara Kothi, District- Purnea.

…..Plaintiff-Respondent 1^st Party

2.

Gopal Kumar Sah, Son of Late Ramjee Sah,

3.

Pradeep Kumar Sah, Son of Late Ramjee Sah, Both Residents of Village-

Tulsia, P.O.- Baijnathpur, P.S.- Bihariganj, District- Madhepura Bihar.

...Defendants 1^st Party-Respondents 2^nd Party

4.

Indira Devi, W/o Birendra Sah, D/o Late Ramjee Sah, Resident of Village-

Singheswar, P.S.- Singheswar, District- Madhepura.

...Defendants 2^nd Party-Respondent 3^rd Party

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Appearance :

For the Appellant/s

:

Mr. Anil Kumar Mukund, Advocate

Mr. Anirudh Pandey, Advocate

For the Respondent no.1 : Mr. Amit Kumar Anand, Advocate

For the Respondent no.4 :

Mr. Uday Chand Prasad, Advocate

Mr. Manoj Kumar, Advocate

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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY

C.A.V. JUDGMENT

Date : 08-02-2023

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.

The instant appeal has been preferred against the

judgment dated 23.3.2017 and decree dated 29.3.2017 passed in

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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.

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

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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.

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