SUDHA DEVI Vs. CHINTAMANI

JUDGEMENT

(1.) The Plaintiff has filed this First Appeal against the Sahoo, J.impugned judgment and decree dated 25.01.2001 passed by Sri Lakshman Ram, the learned Subordinate Judge 4th, Purnea in title suit No. 192 of 1997 dismissing the Plaintiff-Appellant's partition suit.

(2.) The Plaintiff-Appellant, Smt. Sudha Devi filed the aforesaid partition suit being title suit No. 192 of 1997 claiming 1/6th share in Schedule-A land of the plaint. She claimed 1/6th share alleging that Sitaram Bishwash had three sons and three daughters namely Siv Prasad Bishwash, the Defendant No. 1, Jagdish Prasad Bishwash who died in 1993 leaving behind heirs Defendant Nos. 6 to 10, Hari Prasad Bishwash who died in 1986 leaving behind heirs Defendant Nos. 2,3,4,5,12 and 13, Sudha Devi, the Plaintiff, Urmila Devi who died in 1982 leaving behind her heirs Defendant Nos. 14 to 16 and Kamla Devi, Defendant No. 17. Sitaram Bishwash died on 22.12.1974. His widow, Fulkumari Devi died much before the death of Sitaram Bishwash. All the sons of late Sitaram Bishwash separated themselves in mess and worship only in the year 1955. The suit land is still joint and the parties have got unity of title and possession. The Plaintiff used to come seasonally and receive her proportionate crops. Defendant No. 1 is the karta of the joint Hindu family. For last 5 years, the Plaintiff is not being given her proportionate share. Some lands situate at Mauja Siyarkham comprised within khata Nos. 44 to 47, area 28.28 acres. Out of the joint family fund, three brothers have purchased the lands of Mauja Kohila comprised within khata No. 42 measuring 16.55 acres which is also joint family property and the parties are in joint possession. Out of the joint family fund, late Hari Prasad Bishwash purchased land of khata Nos. 62 and 90 in Mauja Balwa which is also joint family property. In the month of December, 1996, the Plaintiff was given only 30 monds of crops instead of 150 monds which compelled the Plaintiff to demand for partition. The Defendants refused to partition the suit property. The Plaintiff further alleged that her father, Sitaram Bishwash owed Rs. 20,000 to the Plaintiff for last 20 years and in lieu of the said amount, her father had donated a small chunk of land at Nayatola, Purnea for residential purpose through a punchnama. This land is not the suit property which belongs to the Plaintiff exclusively. On these grounds, the Plaintiff prayed for 1/6th share in the suit property.

(3.) On being noticed, the Defendants appeared and filed a joint written statement. Besides taking various legal pleas, their main defence is that Jashodhar Bishwash, husband of Urmila Devi and Poonam Devi, daughter of late Hari Prasad Bishwash have not been made party in the suit and, therefore, the suit is bad for defect of parties. They admitted that because of dispute in the family, Hari Prasad Bishwash and Jagdish Prasad Bishwash separated from their father in April, 1955 in mess only. The three brothers had got their separate earning and income out of their separate milk business and earning from other paddy, jute and crop business. Out of their personal fund and earning, the three brothers acquired some of the suit lands in their own names which are detailed in Schedule of the written statement. Sitaram Bishwash gifted his property to the three brothers. Therefore, the Plaintiff has got no right, title and possession over the properties which were acquired by the three brothers out of their own income and over the lands of Sitaram Bishwash which was gifted by the gift deeds to his sons separately. The Defendants denied that out of joint family fund, the land of Mauja Kohila measuring 16 acre 55 decimals was purchased. They also denied that out of joint family fund, the land of Mauja Balwa was purchased. They also denied to have given 30 monds of paddy to the Plaintiff in December, 1996. Their case is that the Plaintiff has got no interest in the suit property and she has no right to demand partition. The share demanded by the Plaintiff is wrong. They also denied the allegation of the Plaintiff that her father owed Rs. 20,000 for last 20 years and in lieu of that, he donated small chunk of land at Nayatola, Line Bazar, Purnea. They also stated that the punchnama is forged and fabricated document.