Advocates:
['S N TRIPATHI', '', 'RATAN KUMAR', 'S N SINGH', 'V K SINGH', 'BINOD KUMAR SINGH', 'RAVI RANJAN', 'KAMESHWAR PD GUPTA', '', 'S R HAQUE', 'A AZIZ', 'KHURSHID AHMAD', 'NAJEEB AHMAD', 'Atif Inam', 'Sanjay Sinha', 'S M Shabbir Alam', 'Deepak Kumar Singh', 'Asif Kalim', 'Md Shahab Khalil', 'Saba Ashfaque', 'KHURSHID AHMAD SIDDIQUI']

IN THE HIGH COURT OF JUDICATURE AT PATNA

First Appeal No.52 of 1987

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Kodai Sah & Anr

.... .... Appellant/s

Versus

Ram Autar Sah & Ors

.... .... Respondent/s

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Appearance :

For the Appellant/s : Miss. Vagisha Pragya Vacaknavi, Advocate

Mr. S.N.Singh

Mr. Ravi Ranjan

Mr. Ratan Kumar

Mr. Binod Kumar Singh

For the Respondent/s : Mr. Raghib Ahsan, Sr. Advocate

Mr. Wasi Akhtar, Advocate

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CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR

CAV JUDGMENT

Date: 23 - 01-2018

This is an appeal filed by plaintiffs against the judgment and

decree dated 29^th November, 1986, passed by 4^th Additional Sub

Judge, East Champaran, Motihari in Partition Suit No.12 of 1981

whereby and whereunder the suit filed by plaintiffs was dismissed.

The appellants were the plaintiffs before the court below. They had

filed the suit for partition claiming half share in the suit properties

mentioned in schedule-2 of the plaint. The following genealogy as set

out at the foot of the plaint of Partition Suit No.12 of 1981 explains

the relationship between the plaintiffs and defendants Ist set.

Patna High Court FA No.52 of 1987 dt.23.01.2018

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2. The above genealogical table shows that Nathu Sah was the

common ancestor of both the parties. The plaintiffs are grand-son and

great grand son of the younger son of Nathu Sah. The defendants Ist

set are heirs of Langat Sah the, elder son of Nathu Sah. The case of

appellants/plaintiffs is that the ancestor of both the parties, namely,

Nathu Sah died leaving the ancestoral property mentioned in schedule

2 of the plaint. The said land was in joint cultivation of ancestors both

the parties. The parties as per convenience were cultivating the land

and during the survey operation, the same were recorded under joint

khata. The name of ancestor of both the parties have been mentioned

in the remark column of khatian. The father of plaintiff no.1 had

acquired some land from his personal earning with which the ancestor

of defendants had no concern. The land mentioned in schedule 3 of

the plaint were exclusively acquired by Jhingur Sah and accordingly

Patna High Court FA No.52 of 1987 dt.23.01.2018

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the same were recorded in the name of Jhingur Sah and so, the

plaintiffs being his heirs have exclusive right and tile over the same.

The defendants in collusion with each other started creating trouble in

peaceful possession of the plaintiffs and so it became necessary to get

the land partitioned.

3. The defendant nos.6 and 7 of defendant first set jointly

filed written statement. The defendants have denied the correctness of

genealogical table. According to these defendants, the branch of

Langat Sah and Gopi Sah do not hold any property in jointness. The

entire properties had been partitioned between the branches by metes

and bounds before the revisional survey operation. The land was

divided keeping in view of convenience of both the parties and also

the nature of land. During the survey operation, the land allotted in the

share of two branches have been shown in remark column of khatian

as per their respective possession. The survey khatiyan was prepared

as per their share and possession. Their further case is that the land of

plot no.1091 could not be partitioned as the same was under water and

so it was recorded in the joint name of both the parties. After survey,

both the parties divided the said land in equal share. Their further case

is that the land of plot no.1388 was in possession of a mortgager and

so it was allotted in the share of Langat Sah who in due course came

in possession over the same. So far as the land of schedule 3 is

concerned, the case of these defendants is that the said land belong to

Patna High Court FA