- (1.) This appeal is directed against the judgment dated 12 th December, 1988 passed by 6 th Additional District Judge, Palamau in Partition Appeal No. 14 of 1985 whereby he set aside the judgment and decree passed by Munsif, Daltonganj dated 24.11.1984 in Title Suit No. 20 of 1976 and decreed the partition suit filed by the plaintiff.
(2.) The case of plaintiff in brief is that the suit property described in Schedule- A of the plaint is joint property of plaintiff and his brother Dhanush Thakur ( father of defendant nos. 1 to 3 and Late Ragho Thakur, whose heirs are defendant nos. 4 to 10). It is also stated that plaintiff is entitled to share in the aforesaid suit property. Further case of the plaintiff is that after the death of his father, he shifted to Daltonganj and opened a hair cutting saloon. It is then stated that from the income of hair cutting saloon, he purchased a house at Daltonganj and also purchased lands pertaining to Khata Nos. 1 and 2 at village Nawatanr and constructed a house over it. It is stated that the house at Daltonganj and aforesaid lands and house at village Nawatanr are self acquired property of the plaintiff. It is stated that the plaintiff and defendants were jointly enjoying the usufructs of suit property. However, some dispute arose between both the parties for which a proceeding under section 144 Cr.P.C. and 145 Cr.P.C. initiated. It is stated that said proceeding disposed of on the basis of compromise. It is further stated that when plaintiff insisted for partition of Schedule -A property as per the terms , compromise, defendants refused, hence present suit filed.
(3.) Defendants contested the suit by filing written statement. In the written statement they admitted that the properties mentioned in Schedule A to the plaint are joint family property. However they states that the house at Daltonganj as well as lands pertaining to Khata No. 1 and 2 of village Nawatanr are also joint family properties, as same are purchased from the joint family fund. The further case of the defendants is that plaintiff opened hair cutting saloon at Daltonganj in the year 1947 with the help of defendants. It is further stated that in the year 1939, mother-in-law of plaintiff wishes to transfer her house at Daltonganj in favour of wives of plaintiff and his brother Dhanush Thakur by executing a deed of gift, as both are her daughters. It is then alleged that plaintiff by doing fraud instead of executing a deed of gift, get a sale deed executed in favour of his son, showing that he paid consideration amount of Rs. 800/-. It is stated that in the year 1939, plaintiff had no income to purchase aforesaid house. Defendants claimed that the said house is also a joint family property. Accordingly, it is submitted that the present suit is liable to be dismissed on the ground of partial partition, because plaintiff had not included aforesaid properties in Schedule A to the plaint.;