BANARSI SONAR Vs. MARCCHIA

JUDGEMENT

(1.) This appeal has been tiled by the defendants and it arises out of a suit instituted by the plaintiff for partition of her one-third share in the disputed properties. That suit was decreed by the trial Court and on appeal, the decree has been affirmed.

(2.) The following facts are necessary to be mentioned for the purposes of this appeal. One Ram Saroop Sonar had four sons named Raj Kumar, Banersi, Tufani and Akalu. The original plaintiff was the widow of Raj Kumar. She died during the pendency of the suit, and respondent Nos. 1, 2 and 1 were substituted in her place ax her heirs and legal representatives. Respondent No. 1 Moset Maracchia was substituted as the daughter of the original plaintiff, and responded Nos. 2 and 3, Kishun Sonar and Dukhani as son and daughter of respondent No. 1. According to the piaintiffs' case. Raj Kumar had separated in mess from the other members of the joint family and he had been given some separate kind for cultivation by way of family arrangement. On the allegation that the family was joint, the original plaintiff dawned to haw inherited the share of her husband, Raj Kumar. The substance of the contesting defendants case was follows: It was alleged that the original plaintiff, Mosst. Fulesari was not legally married wife of Raj Kumar. It was alleged that Raj Kumar had executed a deed of relinquishment in 1941 in favour of his brothers and there was a deed of settlement by which Raj Kumar had been given some lands for his maintenance with the stipulation that he would have life interest m the properties, but in case he had any issue, the properties given to him would remain with him and his children. The defendants denied that the plaintiff was ever in possession of the family properties and adverse possession was also asserted. After substitution, it was also asserted that respondent No. 1 of this appeal was not the daughter of Raj Kumar, but that she was the daughter of his wife's sister's son. The question whether the original plaintiff Mossll Fulesari was the wife of Raj Kumar was made the subject-matter of an issue in the trial court and it was held that she was the Raj Kumar's wife Whether respondent No. 1 Mossll Marchia was the daughter of Raj Kumar and Mossll Fulesari was also made an issue and it was held by the trial court that she was. Both these matters have now become final. In the court of appeal below it had been contended by the defendants appellants that if the suit succeeds, the plaintiffs' share would be not more than one-fifth. The court of appeal below has held that the plaintiffs' share would be one-third.

(3.) Learned counsel for the appellants has re-agitated the last point; but it is clear that the contention has no force. At the time when this suit had been instituted by Mosstt Fulesari. Akalu and Ram Saroop were dead, and therefore. Mosstt Kulesari's share was one-third. The matter is concluded by the decision of the Supreme Court, in the case of Lakshmi Perumallu v. Krishnavenamma, reported in AIR 1965 S.C. 825. The second point argued by the learned counsel for the appellants is of substance, and in my opinion, the appeal must be remanded to the court of appeal below for reconsideration. It is contended that one of the main points agitated on behalf of the defendant's regarding relinquishment by and settlement in favour of Raj Kumar has not been appreciated by the court of appeal below, and that as a matter of fact, this case of the defendants has been accepted while dealing with the question of Mosstt. Fulesari's relationship. According to learned counsel for the appellants, if the defendants' case of surrender and settlement be accepted, then the suit for partition must fail. It appears from the judgment of the trial court, under issues Nos. 5 and 6, that, the view taken by that court was that if Mostt. Fulesari was the wife of Raj Kumar and Mosstt Marachia was their daughter, there was unity of title and possession between the parties to the suit. It was mentioned that the deed of Bazidawa could not defeat the right of the plaintiffs as it was not a deed of conveyance. All that the court of appeal below has stated is that there is evidence to the effect that the Bazidawa and the settlement were not acted upon. But, it appears from paragraph 7 of the judgment of the court of appeal below, that the court has accepted the case that Raj Kumar had 5 bighas of land in his share which was being cultivated by Mosstt Fulesari. If is, therefore, clear that on one hand the court of appeal below has held that the surrender was not acted upon and on the other, it has been held that Raj Kumar and thereafter, his widow was in possession of 5 bighas of land as the defendants alleged Apparently, the conclusion is based on the record of some other case. The court of appeal below has nowhere considered the actual evidence adduced by the defendants in this suit No doubt the evidence of Mahesh Narain Das. B.D.O. has been considered by the court of appeal below, but the contrary evidence of the defendants, as for instance, the evidence of Banarsi (D.W.4) has not been considered. According to learned counsel for the appellants, if the defendants' case of surrender by Raj Kumar and settlement of some land in his favour is true, then the question of adverse possession did arise and in my opinion, the contention is not without force. In my opinion it is a fit case in which the appeal should be remanded for reconsideration. It is however, made clear that the concluded points of relationship mentioned above and the extent of the plaintiffs' share win not be re-opened.