M.Y.EQBAL, J. - (1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment dated 07.09.99 passed in First Appeal No. 116/1985(R), whereby the learned Single Judge dismissed the appeal and confirmed the judgment and decree dated 3.8.85 passed by Second Additional Sub -Judge, Giridih decreed the suit in part for partition of the suit properties to the extent of 1/7th share only. The plaintiffs/appellants aggrieved by the said judgments and decree filed the instant Letters Patent Appeal.
(2.) THE plaintiffs/appellants case in short is that one Anant Ram was the common ancestor of the parties. He had two sons namely Mahadeo Lal and Fagu Lal and they constituted a joint Hindu Mitakshara family of which Anant Ram was the Karta. The joint family carried on business in the name and style of M/s. Anant Ram Mahadeo Lal, Shri Anant Ram died in the state of jointness leaving behind his son Mahadeo Lal and Fagu Lal who succeeded him and subsequently Mahadeo Lal died leaving behind two sons namely Behari Lal Jalan and Chhedi Lal Jalan. Fagu Lal also died leaving behind three sons namely Basant Lal Jalan, Jwala Prasad Jalan and Banwari Lal Jalan. Behari Lal Jalan died issueless. Plaintiffs further case was that joint family of Chhedi Lal Jalan and son of Fagu Lal Jalan disrupted in the year 1964 and the movable and immovable properties of the joint family was partitioned by metes and bounds between Chhedi Lal Jalan on the one hand and Basant Lal Jalan and others on the other hand by virtue of registered deed of partition dated 01.08.1964. Thereafter. Chhedi Lal Jalan said to have come in possession of his own share of the properties allotted to him and similarly the sons of Fagu Lal came in possession of the share of properties allotted to them. Plaintiffs further case was that three sons of Fagu Lal Jalan could not continue joint for long due to differences and consequently there was a partition between them also by virtue of partition deed dated 28.7.1965. One Ghanshyam Das Jalan who is one of the sons of Jwala Prasad Jalan was taken in adoption by Shri Basant Lal Jalan by registered deed of adoption and by virtue of another registered deed of partition dated 28.7.1965 the movable properties which had been allotted to the share of sons of Fagu Lal were divided into three separate shares and Takhtas and 1/3rd share was allotted to Basant Lal Jalan and his adopted son Ghanshyam Das Jalan and 1/3rd Takhta each was allotted to Jwala Prasad Jalan Banwari Lal Jalan. The properties allotted to the Takhta of Sri Jwala Prasad Jalan and his sons were set forth in Schedule "Kha" of the said deed of partition which are mentioned in Schedule A excluding the lands of village Koldiha which were sold away by Jwala Prasad Jalan to Srimati Bindhya Devi by a registered Sale Deed dated 02.01.1969. It was alleged that Sri Jwala Prasad Jalan and his sons had been coming in possession of the properties mentioned in the Schedule A of the plaint. Plaintiffs sought partition from defendants in respect of the house situated within the Giridih Municipality. Plaintiffs claimed 1/7 share in the said property. The case of the defendants/respondents is that the suit is not maintainable. It is stated that Jwala Prasad Jalan, father of the plaintiff and defendants being the Karta had sold the lands in favour of Smt. Vindhya Devi by registered sale deed and the sale proceeds was appropriated for joint family business. It is incorrect to state that Jwala Prasad Jalan, the defendant No. 1 and his sons, plaintiff and defendant Nos. 2 to 4 are still continuing as members of joint family and they are coming in joint possession of the properties. The defendant No. 2 separated from the said joint family in the business on 20.7.1974. The joint property at that time had one wholesale cloth business known as M/s. S.M. Textiles, and one retail cloth shop known as Mamta Textiles. The retail shop Mamta Textiles was allotted to the share of Panna Lal Jalan defendant No. 2, whereas the wholesale shop was allotted to the defendant Nos. 1, 3, 4, 5 and the plaintiff who remained joint. There was a demand for partition of moveable properties by Pannalal Jalan, defendant No. 2 and it was decided that the defendant No. 2 be allotted his share in immoveable properties whereas the defendant Nos. 1, 3, 4 and the plaintiff remained join. The land and premises comprised in Holding No. 5, ward No. 3 of Giridih Municipality was allotted to the share of defendant No. 2 on the condition that defendant No. 2 would pay a sum of Rs. 21,000/ - to the other members and he would also clear all municipal dues amounting to Rs. 8,000/ - It was also agreed upon that till defendant No. 2 should vacate the residential house in Ward No. 3 at Chowk Bazar, Giridih Municipality, he would be entitled to realize rent from the tenants in part of holding No. 5, Md. Isha and Md. Safruddin. Accordingly, defendant No. 2 paid a sum of Rs. 21,000/ - in cash to the defendant No. 1 and his other sons through Kameshwar Prasad Gutgutia, and he also paid the municipal dues. One memorandum was also drawn for partition which was typed and was duly signed by parties in August, 1982. Defendant No. 2 vacated the premises occupied by him at Chowk Bazar, Giridih and began to live in a rented house belonging to Ganga Prasad Singh and thereafter the defendant No. 2 shifted to the said portion of Holding No. 5 and he has also made construction for suitable residence out of his own personal funds. A proceeding under Sections 107/144, Cr. P.C. was also started against the neighbours of Abdul Rashid and another which was fought by the defendant No. 2. The defendant No. 2 also is realizing rent from the tenants from Md. Isha and Md. Safruddin. The plaintiff and other defendants have got no any interest or share in Holding No. 5, Ward No. 3 and the plaintiff has never demanded any partition and he has got no cause of action for the suit and the suit is fit to be dismissed.
(3.) THE trial Court framed as many as four issues which are as under : "(1) Has the plaintiff any cause of action for the present suit? (2) Is the suit maintainable? (3) Is the plaintiff entitled to partition of the suit properties? (4) Is the plaintiff entitled to any relief or reliefs, if so, to what extent.;