SANJAY KUMAR DWIVEDI,J. - (1.) Heard Mr. S. N. Das, learned counsel appearing for the appellants.
(2.) This second appeal has been filed against the judgment and decree dated 21.11.2017 and 29.11.2017 respectively passed by the District Judge-XIV, Hazaribagh in Title Appeal No.9 of 2017 whereby the appeal has been dismissed and the judgment and decree dated 23.01.2017 and 31.01.2017 respectively passed by the learned Civil Judge (Junior Division), Hazaribagh in Partition Suit No.85 of 2009 has been affirmed.
(3.) The case of the appellants/plaintiffs was that the Ghutar Pandey formed a joint Hindu Family with his son and grandsons namely Kedar Nath Sharma and Shankar Sharma. Bhanu Prakash Sharma was the eldest son of late Ghutar Pandey who used to took after the family being "Karta" of Joint Family. In the year 1930, Bhanu Prakash Pandey had purchased a piece of land described in Shedule-B of the plaint from the joint family fund which was being looked after by Bhanu Prakash Pandey. The said property was a barren piece of land and subsequently two rooms were constructed over a portion of land from the joint family fund and they started living in the rooms aforesaid. The appellants/plaintiffs further made out a case before the court below that during his lifetime, Bhanu Prakash Pandey dishonestly executed a sale deed with respect to the schedule-B property of the plaint [2] in favour of Mati Devi, the wife of Kedar Nath Sharma vide registered sale deed no.6412 dated 21.07.1961. By passage of time, Bhanu Prakash Sharma died on 09.08.1996 and his daughter-in-law Mati Devi also died. After the death of Mati Devi, her daughter namely Nirmal Devi and Aasha Rani jointly sold the schedule-B property to their youngest sister Anita Kumari by virtue of a registered sale deed No.8462 dated 29.07.2009. Funeral ceremony of Kedar Nath Sharma and his wife Mati Devi was performed by Bablu Shrma son of plaintiff No.1. It has been stated that during the lifetime of Bhanu Prakash Sharma his eldest son Kedar Nath Sharma and the appellants/plaintiffs lived together with the defendants. Even after the death of Kedar Nath Sharma his wife Mati Devi lived together with the plaintiffs and Shankar Sharma plaintiff No.1 used to share the expenses of the joint family. It was further contended that during her life time Mati Devi accepted half share of the plaint in Schedule-B property of the plaint which was also given in writing. On the basis of sale deed defendant No.3 Anita Kumari started living in the entire Schedule-B land and thereby she wanted to deprive the plaintiff's share in schedule-B property and in this view of the situation, the plaintiffs demanded partition of their half share in the joint property but the defendants evaded their demand and lastly on 06.08.2009 they finally refused to give half share to the plaintiffs in the suit property. In the light of the above facts, the appellants/plaintiffs instituted the suit and prayed for decree for partition of their half share in the suit property and to appoint the Survey Knowing Pleader Commissioner to carve out the partition and also prayed for his share and prayed for the cost of the suit. Pursuant to the notice, all three defendants appeared and filed a joint written statement challenging the contention of the appellants/plaintiffs. A common preliminary objection was raised as the suit is not maintainable without having any cause of action, undervalued, misconceived in law and facts and concealment of necessary facts. It was further contended that the property was not joint in between the parties since there was no unity of title and possession in between them. It was admitted by the defendants that Bhanu Prakash Pandey was the eldest son of late Ghutar Pandey and that in the year 1930 Bhanu Prakash Pandey had purchased a piece of land. It was further admitted that Schedule-B property was a barren land upon which two rooms were constructed over a partition [3] of the same but at the same time, it has been denied that the property was purchased from the joint family fund and it was also denied that the rooms were constructed from a joint family fund rather strongly contended that the acquisition of the property was made from the exclusive fund of the purchaser. It was further contended that the appellants/plaintiffs being a family members have been allowed to live in the aforesaid house which was a permissive possession. It was clearly stated that the sale deed no.6412 dated 21.07.1961 was a genuine sale executed by Bhanu Prakash Pandey. It has been vehemently denied that the last rites and rituals of Kedar Nath Sharma and his wife Mati Devi was performed by Babloo Sharma, the sons of plaintiff no.1 rather it was performed by the defendants out of their own fund. It has been denied that Mati Devi in order to avoid further litigation amongst the family members gave in writing and executed half share of the appellants/plaintiffs in Schedule-B property and there was no question of depriving the plaintiffs from their legitimate share in Schedule-B property of the plaint. It was further contended that the appellants/plaintiffs did not have any right, title and interest over the suit property rather they were forcibly living therein. The appellants/plaintiffs never demanded partition from the defendants and the date of cause of action mentioned in the plaint was absolutely false and imaginary. It was further contended that the Mati Devi had acquired the property herself and it was her "STRIDHAN" property. She had only three daughters who became legal heirs and absolute owner after her death. It was lastly contended that the appellants/plaintiffs suit is without having any cause of action and their claim is absolutely mala fide, therefore, the same was fit to be dismissed. On the basis of above pleadings, the trial court entered into the lis and formulated eight issues to decide the suit. After discussing all the evidences as well as the documents exhibited by the parties, the trial court came to the finding that the land in question was purchased from the own earnings of Bhanu Prakash Pandey, therefore, the trial court dismissed the suit vide judgment dated 23.01.2017. ;