Decided on February 25,1952

GOPAL RAM Appellant
RAM PRASAD Respondents


- (1.) These appeals are brought by defendants 1 to 3 and by defendants 12 to 14 against a preliminary decree granted in a partition suit.
(2.) The land in dispute comprises plot 1863, area 18 dhurs and 12 dhurkis, and plot 1869, area 1 katha and 12 dhurs, located in the town of Buxar. The plaintiffs claimed that the land was ancestral and they were entitled to be granted partition of eight annas share therein. Defendants 1 to 3 contested the suit on the allegation that plot 1869 was acquired by Gaya Master from whom they had purchased the plots by an unregistered document. It was alleged on behalf of these defendants that on a portion of the plot they had erected a house to the knowledge of the plaintiffs and in consequence they had acquired title by ouster. A similar claim was advanced on behalf of defendants 12 to 14 who contested the suit so far as plot 1863 was concerned. They alleged that they had purchased the plot from. Gaya Master by virtue of an oral sale and subsequently built a house thereon. An alternative claim of ouster was also pleaded on their behalf. Upon a consideration of oral and documentary evidence the Munsif found that both the plots were joint family properties and that the story of the defendants that they had made a purchase of the plots was not acceptable. The Munsif also held that the defendants had not established the plea of ouster with respect to either of the plots in question. The Munsif therefore granted a decree to the plaintiffs for partition of eight annas share of the two plots and directed that the "commissioner will have due regard in effecting partition to the convenience of the parties and that he may allow compensation in money to others if he thinks it advisable not to partition the house." The decision of the Munsif was affirmed by the learned Subordinate Judge in appeal. But in the operative portion of the judgment the Subordinate Judge observed : "As the defendants have made constructions, so naturally they would be entitled to compensation or such relief at the time of actual partition and. this is a matter which has to be determined at the time of partition."
(3.) The main question argued is that upon the findings reached there ought to be a direction in the decree that the house erected should not be partitioned but that the two plots should be assessed at a reasonable price and that the plaintiffs ought to be granted their share of the value so assessed which is to be paid by the defendants.;

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