Narendra Nath Tiwari, J. - (1.) PLAINTIFFS are Appellants. In this second appeal, they have challenged the concurrent findings of facts recorded by the courts below holding that the Plaintiffs have not succeeded in proving their right and title and unity of title and possession of the parties in the suit property and the Plaintiffs are not entitled for the relief of partition or any other relief.
(2.) THE Plaintiffs had filed suit in the court of learned Sub Judge, Chaibasa, praying for a decree for partition of suit property, described in Schedule -A of the plaint, claiming half share, and also for holding that renewal of lease in respect of the suit property in the name of Mundri Dusadhin and deed of gift executed in favour of the Defendant are null and void. The Plaintiffs' case, in brief, was that the parties are governed by Mitakshara School of Hindu Law. The suit property was leasehold property in the name of Jitan Dusadh. He had two sons, namely, Shiv Charan Dusadh and Namdhari Dusadh and one daughter Mundri Dusadhin. Mundri Dusadhin had become widow during lifetime of Jitan Dusadh and came to reside in her paternal home which is the suit house. Among the sons of Jitan Dusadh, Shiv Charan Dusadh had only three daughters, namely, Laxmi, Dan Kumari and Rangmati. Namdhari had one son, namely, Gopal. All the daughters of Shiv Charan Dusadh were married. Rangmati died issueless. The Plaintiffs are heirs of Dan Kumari. Gopal Dusadh also died issueless. After the death of Jitan Dusadh, his two sons had inherited the suit property. He died prior to coming into force of Hindu Succession Act 1956. Shiv Charan Dusadh and Namdhari Dusadh also died leaving behind the aforesaid daughters and Gopal Dusadh was the only male heir. Gopal Dusadh inherited the entire suit property and remained in possession of the same. After the death of Gopal Dusadh, his mother and aunt inherited the suit property. Mundri Dusadhin, being a married daughter, was excluded from inheritance. Dan Kumari, daughter of Shiv Charan Dusadh became widow and she also came back to her parental home. She was living with her mother -Bigni Dusadhin. After the death of Gopal Dusadh, father of Defendant used to visit Chaibasa occasionally. He had greedy eye over the suit property. He took advantage of illiteracy of Bigni Dusadhin and Lakhia Dusahin and got the lease of the suit property renewed in the name of Mundri Dusadhin in connivance of Khas Mahal authorities. Lease was renewed in the name of Mundri without any notice. Father of the Defendant influenced Mundri Dusadhin and got a deed of gift executed in favour of the Defendant. Recently, in the month of July, 1996, the Defendant -Basant Dusadh came to Chaibasa from Adityapur, where he was working. Plaintiffs allowed him and his family to occupy a portion of the suit house, After some time, the Defendant started claiming right and title over the suit property on the basis of the gift deed. The Plaintiffs pleaded that the gift deed executed by Mundri Dusadhin is illegal and void. The Defendant has not acquired any right, title over the suit property by virtue of the said gift deed.
(3.) THE Defendant appeared and contested the suit. In his written statement, besides taking the ground of legal bar and maintainability of the suit, he specifically pleaded that there was no unity of title and possession between the parties and the simple suit for partition is not maintainable. The Defendant claimed that the suit property exclusively belonged to and was possessed by Mundri Dusadhin -daughter of Late Jitan Dusadh. The suit property was a leasehold property under the State of Bihar and the lease in respect of the property was renewed in the name of Mundri Dusadhin by Khas Mahal authorities in T.K.M. Case No. 388(L) of 1965. She had been in continuous possession of the said property till she gifted the property to the Defendant by virtue of registered deed of gift. The said transfer was made after obtaining permission from Khas Mahal authority, as required under the terms of the lease. The Defendant, thereafter, got his name mutated in respect of the suit property. Jamabandi has been all along running in his name and he has been paying rent to the Khas Mahal authority. The Defendant further pleaded that Holding Nos. 1020 and 1024 belonged to Jitan Dusadh. He died leaving behind two sons, namely, Shiv Charan Dusadh and Namdhari Dusadh and daughter, namely, Mundri Dusadhin. Mundri Dusadhin became widow and had come back to her paternal home. There was a partition between Shiv Charan Dusadh and Namdhari Dusadh. In that partition, Holding No. 1020 was allotted to the share of Shiv Charan Dusadh and Holding No. 1024 was allotted to the share of Namdhari Dusadh. After the death of Namdhari Dusadh, Gopal Dusadh inherited the suit property. Gopal Dusadh also died in 1959 without any issue. Mundri Dusadhin was living with Gopal Dusadh in the suit property. Gopal Dusadh had two wives, who also died. After the death of Gopal Dusadh and his wives, Mundri Dusadhin came in exclusive possession over the suit property. On that basis, lease was renewed in her name by the Khas Mahal authority. Mundri Dusadhin by virtue of registered deed of gift dated 14th November, 1967 transferred the suit property in favour of the Defendant. The Defendant accepted the gift and came in exclusive possession of the suit property. In spite of the knowledge of renewal of the lease, exclusively in the name of Mundri, the Plaintiffs never raised any objection. The Plaintiffs did not challenge renewal of the lease by the Khas Mahal authority. Plaintiff No. 1 -Dari Kumari rather got the lease of Holding No. 1020 renewed in respect of the property, which belonged to her maternal grandmother. The Plaintiffs were allowed to live in the house as licensee, but when they were asked to vacate the house, they filed the said suit, claiming share in the house. There was, thus, no cause of action for filing the suit.;