BABU KHUBLAL SINGH Vs. RAM SARUP SINGH

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree, dated the 30th March, 1968 of the lower appellate court in Title Appeal No. 5/48 of 1963 confirming those of the trial court, dated the 30th November, 1962 in Title Suit No. 235 of 1959.

(2.) In order to appreciate the point urged in this appeal, it will be necessary to state briefly the facts. The plaintiff-appellant instituted the said title suit for partition of one-third share in two plots of land, bearing Plot Nos. 335 and 337 which contain a total area of 4 bighas, 4 kathas and 15 dhurs appertaining to Khata No. 81 situated in village Shampur, Police Station Mirganj, District Saran, Plaintiffs case, in brief, was that the suit land was bakast land of Narain Dubey, Prasad Dubey and Nand-lal Dubey, They being the three sons of one Thakur Dubey, each had one-third share in the property in dispute. Prasad Dubey sold his one-third share, that is, 1 bigha, 8 kathas and 5 dhurs out of the said two plots, to the plaintiff, for a consideration of Rs. 500/- on the 4th July, 1959, and put the plaintiff in possession over the same. His further case was that Suria Kuari, widow of Narain Dubey, Ramdeo Dubey and Ram Naresh Dubey, heirs of Nandlal Dubey sold their two-third shares in the disputed plots to the defendants and put them in possession. Since the plaintiff found it difficult to remain in possession of the lands jointly with the defendants, he instituted the said suit for partition. The defendant-respondents resisted the suit and inter alia pleaded that just after the revi-sional survey Narain Dubey, Prasad Dubey and the sons of Nandlal Dubey partitioned and separated their properties. By the said partition, the suit land fell exclusively to the share of Narain Dubey and sons of Nandlal Dubey. Prasad Dubey, the vendor of the plaintiff had no concern with the suit land after the said partition. They also pleaded that the land under dispute, was given in mortgage by two zerpeshgi deeds (Exts. B and B/1) executed by Narain Dubey and Rajrup Dubey sons of Nandlal Dubey in respect of the same plots including the disputed plots. The further case of the defendants was that the suit lands were settled with the defendants by two separate Pattas, dated the 9th February, 1949, and they were in possession over the suit land. The defendants also pleaded adverse possession. According to them, the plaintiff had acquired no title to the suit land as his vendor Prasad Dubey had no title over it. Both parties led evidence both oral and documentary. The trial Court found that there was a previous partition and the suit land fell exclusively to the share of Narain Dubey and Nandlal Dubey. Prasad Dubey, the vendor of the plaintiff, had no right, title and interest in the suit land after the partition. Therefore, the plaintiff was not entitled to partition. He also found that the defendants were in possession of the suit land on the basis of the settlement as pleaded by the defendants. Thus, the suit for partition instituted by the plaintiff, was dismissed. On appeal the appellate court also confirmed the judgment and decree of the trial court as mentioned above.

(3.) Mr. Yogendra Mishra, learned counsel appearing on behalf of the appellant, has raised two points for consideration in this appeal; they are (i) the appellate court has erred in construing Exhibits 'B' and 'B/1'; and (ii) that the appellate court has altogether failed to consider the oral evidence led on behalf of the plaintiff. In order to support his contention under point No. (i) he drew my attention to Exhibits 'B' and 'B/1'. He urged that the appellate court has committed an error of record in holding that Narain Dubey and Nandlal Dubey had mortgaged the entire lands under Plot Nos. 335 and 33