Sinha, J. - (1.) This appeal is directed against the judgment and decree dated 10th April, 1984 passed by the Learned Additional Subordinate Judge, Murshidabad at Berhampore in partition Suit No. 79 of 1983. Defendants Nos.2 and 3 have preferred the instant appeal being aggrieved by and dissatisfied with the said judgment and decree through which Learned Court below decreed the suit in preliminary form for partition declaring plaintiff-respondent No.1's share of 4 annas in the suit property.
(2.) The plaintiff instituted the suit for partition stating that the suit property as described in the schedule to the plaint belonged to two brothers namely Chhabi Mahato and Dinu Mahato in equal share. They expired about 60 years back from the date of institution of the suit. Chhabi Mahato died leaving his only son Kalipada Mahato. Dinu Mahato died leaving behind two sons namely Gour Mahato and Alanath Mahato. Alanath Mahato died leaving behind three sons-namely Renupada Mahato, Jerman Mahato and Batakrishna Mahato and after death of Alanath, these three sons inherited their father's interest in equal share having 1 anna, 6 gondas, 2 Karas and 2 krantis share for each of them. Thereafter Jerman Mahato, a bachelor died without leaving any heir and his interest devolved upon Renupada Mahato and Batakrishna Mahato as a result of which they had 2 annas share each in suit property. Thereafter Gour Mahato died leaving behind his widow Patu Dasi and daughter Radharani Dasi, the plaintiff. The defendant No. 1 Adam Mahato is the son of deceased Kalipada Mahato. Patu Dasi had limited interest in the suit property for her life being Hindu widow and thereafter she died about 38-39 years back before institution of the suit. Plaintiff has thus undivided 4 annas share in the suit property and she is possessing the same with the defendants and she used to receive her share of produce of suit property from the defendants. The defendants Nos. 1 to 3 were entrusted with the recording of suit land but in the R.S. record of rights her name was not recorded and it has been alleged in the suit property deliberately did not record her name in the R.S. record of rights. Accordingly, she filed the suit for partition claiming her 4 annas share in the suit property.
(3.) The defendants Nos. 2 and 3 contested the suit by filing joint written statement denying all material averments of plaint. They, inter alia, contended that the interest of plaintiff, if any, in the suit property has been extinguished by adverse possession of the said interest of plaintiff by defendants Nos. 1 to 3 for a period of over twelve years before institution of the suit. They together with father of the plaintiff belonged to Mitakshara School of Hindu Law and Gour Mahato and Alanath Mahato were members of joint Hindu family. Gour Mahato predeceased Alanath Mahato and the interest of Gour Mahato in the suit property passed to Alanath Mahato under the rule of devolution by survivorship, with the result that, the plaintiff got no interest in the suit property. The plaintiff and the defendants are governed by the Mitakshara School of Hindu Law and their predecessors migrated to Murshidabad from the District of Darbhangha in Bihar. Gour Mahato died leaving no male issue as a result of which by survivorship Alanath Mahato inherited the share of Gour Mahato on his death. Patu Dasi, widow of deceased Gour Mahato remained in the undivided family till death of Alanath Mahato and thereafter she went back to her father's place with the plaintiff and have ceased every contact with the defendants. Though Gour Mahato, Renupada Mahato, Batakrishna Mahato and Jerman Mahato in the record of rights of District Settlement were shown to have specified interest in the suit property, they remained in the joint family, having an interest at 8 annas for their joint interest forming stock of coparcenery interest therein. The suit property was recorded in the Revisional record of rights in the name of these two defendants and transferees from Adam Mahato, the defendant No. 1. The defendant No. 5 filed a separate written statement stating therein that he and defendant No. 6 along with others purchased portion of suit property separately and contended that they are also interested in the suit property.;