Gupta, J. - (1.) This appeal by certificate granted by the Patna High Court under Art. 133 (1) (a) of the Constitution arises out of a suit for partition. Here we are faced with a somewhat uncommon situation where a defendant is asserting a right in certain properties in which he had disowned any interest in his written statement, and the plaintiffs who in the plaint had conceded a share to the defendant in these properties now deny he has any.
(2.) The suit was instituted by one Akleshwar Prasad Singh and his two sons against 15 defendants for partition of the properties described in the various schedules to the plaint. Plaintiff No.1 Akleshwar Prasad Singh and the first three defendants were brothers. Admittedly in 1348 Fasli there was a partition of the ancestral properties of the four brothers. According to the plaintiffs the properties acquired by the brothers out of 'Khetari' fund, however, remained joint and refusal by the first defendant to have these properties partitioned gave rise to the instant suit. The plaintiff claimed 1/4th share in these properties which, according to them, included the properties described in scheduled 1 (f), 1(g), 1(h), 1(j), 1(k), 1(1) and 1 (m) which are the only properties we are concerned with in the appeal before us. The defendants Nos. 2 and 3 supported the plaintiffs' case. Defendant No.1, Rameshwar Prasad Singh, in his written statement contended that there was a complete partition of the ancestral properties as well as the properties acquired from the 'Khetari' fund in 1348 Fasli. According to the first defendant the properties mentioned in schedules 1(c), 1(d) and 1(e) were acquired by his wife, daughter-in-law and sons out of their personal funds and the properties of schedule 2 had been acquired by defendants Nos. 14 and 15. The first defendant further disclaimed any interest in the properties described in schedules 1(f), 1(g), 1(h), 1(j), 1(k), 1(l) and 1(m) which, according to him, were all acquired by plaintiff No.1 and defendants NOs. 2 and 3 out of their own resources after the partition of the joint properties in 1348 Fasli.
(3.) The trial Court directed partition of the plaintiffs' 1/4th share in the properties described in schedules 1(a), 1(b) and 1(i) as well as schedule 2 with the exception of the properties mentioned therein which stood in the names of defendants Nos. 14 and 15. He also directed partition of 1/4th share of the plaintiffs in the properties of schedules 1 (f), 1(g), 1(h), 1(j), 1(k), 1(l) and 1(m). He dismissed the suit in respect of the properties of schedules 1(c), 1(d) and 1(e) which were claimed by defendants Nos. 14 and 15.;