R.K.MERATHIA,J. - (1.) THIS appeal arises out of the judgment and decree dated 21st May, 1993, passed in F.A. No. 13 of 1984 (R) by the learned Single Judge of this Court dismissing the appeal and confirming the judgment and decree dated 11.10.1983 passed by the Subordinate Judge, Chaibasa in T.S, No. 49/1992.
(2.) THE appellant (plaintiff) filed this suit for partition claiming his half share in the suit properties. The case of the appellant in brief is that the parties are governed by Mitakshra School of Hindu Law in the matter of inheritance and succession. Schedule 'A' properties in the suit are the 'Nij -Jote' lands and Schedule 'B' and 'C' properties are homestead lands belonging to the father of the appellant and the respondent No. 1 (defendant No. 1). In other words the case of the appellant is that the suit properties are the private properties of the father of himself and respondent No. 1 and therefore, he is entitled to his half share in the suit properties on partition. The further case of the appellant is that he and respondent No. 1 jointly inherited the suit properties and were in joint possession thereof, according to their convenience. There was no partition with regard to the suit properties although there has been partition with regard to other properties. Respondent No. 1 being Karta of the joint family was looking after the suit properties and disputes arose between the parties and it was not possible for them to remain joint with respect to the suit properties. Respondent No. 1 is the elder brother of the appellant and the respondent No. 2 (defendant No. 2) is the son of the respondent No. 1 A joint written statement was filed by the respondents. In brief, their case was that respondent No. 1 is in possession of suit properties exclusively since the death of his father which occurred in 1945. Respondent No. 1 as a Zamindar of Icha Estate settled Schedule 'C' properties with his son, - the respondent No. 2 by Patta dated 24.3.1952 and since then the respondent No. 2 is in possession of Schedule 'C' properties on payment of rent to Zamindari Serista and after vesting of Icha Estate, in the State of Bihar, the said property is recorded in the name of the respondent No. 2 in the survey settlement operation Schedule 'A' and 'B' properties were recorded in the name of respondent No. 1 in the survey settlement operation. The further case of the respondents is that previously Icha Estate was a division of the Estate of Saraikela and was held by a common ancestor of the parties. The rulership of Saraikela Estate was governed by the Rule of Lineal Primogeniture and inheritance of Zamindari of Icha was also governed by the same rule. The junior male members of the family used to get Kharposh (maintenance) grant before the vesting of Estate in the State of Bihar but they were not entitled to share in the property of ex -Zamindar. The eldest son in the lineal line used to succeed to the Zamindari after the death of Zamindar. It was also mentioned in the survey record of rights of the year 1928 that Icha Estate was impartiable Estate. The property under Khatas Nos. 1 and 140 of Icha were recorded respectively as 'Nij -Jote' and 'Anabad Malik' Khatas of Zamindar of Icha namely, Bidya Binod Singh Deo (the father of the appellant and respondent No. 1) in the said survey operation. The parties were governed by the rule of Lineal Primogeniture and not by Mistakshra School in the matter of succession. The respondent No. 1, as the Zamindar made Kharposh (maintenance) grant of village 'Soso' and 'Nimdihi' to the appellant in the year 1942 which became his property. Respondent No. 1 also created such maintenance grant of landed properties in favour of his four uncles. After the vesting of the Zamindari on 10.5.1956, the suit properties were exempted from vesting and after due enquiry rent was fixed by the State of Bihar in respect of the suit properties and other properties, in the name of respondent No. 1. The further case of the respondent No. 1 is that the appellant is a practising advocate at Chaibasa he appeared for respondent No. 1 and he looked after all the proceedings under the Bihar Land Reforms Act but he never claimed his right over the suit properties in those proceedings. The intermediary interest of the appellant in respect of the aforesaid villages 'Soso' and 'Nimdihi' vested in the State of Bihar and the appellant then submitted returns and drew compensation in respect of the same but at that time also he never claimed any interest over the suit lands. There were proceedings under Section 90 of the Chotanagpur Tenancy Act for correction of the entry of some plots of khata Nos. 1 and 140, which were represented by the appellant being a lawyer but he did not lay any claim over the suit lands. In 1947, respondent No. 1 settled lands in several villages including Icha with the appellant for which the appellant executed Kabuliat accepting such settlement. The appellant drafted objections on behalf of respondent No. 1 accepting therein the right, title and interest of the respondents over the suit properties when some lands were sought to be acquired by the State of Bihar wrongly.
(3.) THE trial Court held that the suit properties were not the private and personal properties of the father of the appellant and respondent No. 1 and that the Zamindari of Icha was governed by the rule of Lineal Primogeniture and that respondent No. 1 alone was the owner of the suit properties described in Schedule 'A' and 'B' and that respondent No. 2 alone is owner of the properties described in Schedule 'C' of the plaint. The trial Court further held that there is no unity of title and possession of the parties with respect to the suit properties and that the appellant is not entitled to claim partition as claimed, and dismissed the suit.;