M.Y. Eqbal, J. - (1.) THIS appeal filed by the plaintiff/appellants under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 2.9.1991 passed by VIIth Additional District Judge, Palamau in Title Appeal No. 31/85, whereby he has allowed the appeal and reversed the judgment and decree dated 29,3.1985 passed by Sub -Judge Palamau, Daltonganj in Partition Suit No. 31/84 and dismissed the suit.
(2.) THE admitted facts of the case are that the land of Khata No. 30 plot No. 42 measuring an area of 3.58 acres of village Kurainpatra P.S. Leshliganj in the district of Palamau was originally recorded in the last cadastral survey records of right in the name of one Nageshwar Shukla Mentioning therein that one Sheodhari Tiwari was in cultivating possession as under raiyat. A separate darraiyati khata No. 6 was also prepared in respect of this land in the name of Sheodhari Tiwari. The case of the plaintiffs appellants is that the recorded raiyat Nageshwar Shukla surrendered the aforesaid land to the Khas Mahal Officer and the Khas Mahal Department later on made permanent raiyati settlement of the said land in the joint names of Deo Narayan Tiwari and Jeo Nandan Tiwari, sons of Sheodhari Tiwari and Nema Tiwari son of Pachu Tiwari, In course of settlement proceeding Jeo Nandan Tiwari died leaving behind a son Raj Nandan Tiwari (defendant No. 1) and accordingly, a new holding No. 83 was opened in respect of this land in the joint names of Deo Narayan Tiwari son of Sheodhari Tiwari, Raj Nandan Tiwari son of Jeo Nandan Tiwari and Nema Tiwari son of Pachu Tiwari. The plaintiffs are the heirs of Nema Tiwari, and the defendants are the heirs of Deo Narayan Tiwari. Thus plaintiffs filed partition suit No. 31/84 for decree for partition of half share in the suit property as according to them they have half share in the property while defendants appellants representing the branch of Sheodhari Tiwari have the other half share in the property. The defendants respondents contested the suit. Their case in the written statement is that after the death of Sheodhari Tiwari his five sons namely, Deo Narayan Tiwari, Ram Briksha Tiwari, Jeo Nandan Tiwari, Narayan Tiwari and Ram Brij Tiwari succeeded the entire suit property and came in cultivating possession of the same. Deo Narayan Tiwari being the eldest member was karta of the family and on behalf of other brothers he entered into an arrangement with Nageshwar Shukla whereby Nageshwar Shukla surrendered his raiyati interest in. the suit land to the Khas Mahal and thereafter Deo Narayan Tiwari for himself and on behalf of all his brothers got the raiyati settlement from Khas Mahal and thus he alongwith his brothers and their heirs continued in cultivating possession of the entire suit land. Further case of the defendants is that initially jamabandi holding was numbered as 81 in the name of Deo Narayan Tiwari and his brothers. Subsequently some how or other in the rent receipts jamabandi holding came to be mentioned as 83. Their further case is that before the aforementioned partition suit, there was a proceeding under Section 145, Cr PC where it was admitted that all the five sons of Sheodhari Tiwari have their residential houses, and well in the suit property. In that preceding the remaining area of the suit land was in dispute and the plaintiff respondents had claimed 1/3rd share in the suit land. The plaintiffs lost the proceeding under Section 145, Cr PC in which the Court found the appellants -defendants and heirs of the other three brothers to be in possession of the suit land. The said order was affirmed in criminal revision also. According to the defendants therefore a simple suit for partition is not maintainable and further that suit is bad for non -joinder of the other brothers of Deo Narayan Tiwari in whose favour also possession was declared under Section 145, Cr PC.
(3.) THE trial Court on the issue of maintainability of the suit held that there was no need for the plaintiff to seek declaration of title and recovery of possession merely because of an adverse order passed in a proceeding under Section 145, Cr PC for the reason that possession of one co -sharer is possession of all co -sharer. Learned trial Court further held that since settlement was made only with Deo Narayan Tiwari, Jeo Nandan Tiwari and Nema Tiwari and it was not made with other three brothers of Deo Narayan Tiwari, so the other brothers are not necessary party and the suit is not bad for non joinder of necessary party. Accordingly the trial Court decreed the suit.;