M.Y.EQBAL, J. - (1.) THIS appeal by the defendant -appellants is directed against the judgment and decree dated 31 -5 -1989 passed by Subject III, Hazaribagh in Partition Suit No. 77/80 of 1966/88 whereby the plaintiffs' suit has been decreed in part.
(2.) IN the aforesaid suit the plaintiffs -respondents sought a decree for partition and claimed sixty two and half paise share in the properties of village Lapunga detailed in Schedule B and item Nos. 1 to 8 of Schedule C properties and share to the extent of 13 -4/5 paise item No. 9 of Schedule C properties. Plaintiff's case, inter alia, is that one Fuchan Sao was the common ancestor of the parties Khata No. 19 of village Labaga P.S. Ramgarh was recorded in the name of Fuchan Sao. He had one son, Mithu Sao. Mithu Sao, since dead, had two wives. From the first wife named Temni Devi he had two sons, Ramnath Sao and Kashinath Sao and a daughter Bachua Devi. From his second wife, Bilaso Devi, he had three sons, Goberdhan Sao, Baldeo Sao and Jagdish Sao and a daughter, Sarita Sahu. Ramnath Sao had two sons, Nageshwar Sao and Bhubneshwar Sao Kashinath Sao had also two sons, Jadunandan Sao and Ashok Kumar, Khaiti Devi is the wife of Ramnath Sao and Gudani Devi is the wife of Kashinath Sao. Chinta Devi is the wife of Nageshwar Sao Further case of the plaintiffs is that they along with the defendants constituted a joint Hindu Mitakhar family and they have been continuing in jointness. The joint family had ancestral land recorded under khata No. 19 village Lapanga in the District of Hazaribagh. The joint family also acquired lands in several villages in the name of one and other members of the joint family. The parties continued in joint possession of the properties, both of ancestral and those of acquired from time to time in the name of different members of the family. It is stated that some ancestral lands of joint family as detailed in Schedule B/1 was acquired by the Bihar State Electricity Board and compensation amount has been paid. It is alleged that due to growth in the number of the family members it became now inconvenient to remain joint and, therefore, the suit filed for a decree of partition.
(3.) DEFENDANT Nos. 1 to 10 filed their written statement alleging that the suit for portion is not maintainable and the same is bad for non -joinder and mis -joinder of parties. Defendant's case is the Ugani Devi, daughter of Fuchan Mahto is the necessary party to the suit. There is no unity of title and possession between the parties. The suit has not been properly valued. The defendants have denied and disputed the allegation of joitness and unity of title and possession. The case of the defendants is that after the death of Mithu Sao or even before there were disruption in the family by reason of his having married two wives one after another. There was serious difference in the family. The children of the first wife separated from Mithu Sao. After the death of Mithu Sao the brothers again separated. The sons of the first wife separated from the sons of the second wife. There was no joint family and both the parties have separate earnings. Only the ancestral lands of Khata No. 19 are available for partion. Major portion of the ancestral land was acquired by the Government and compensation amount was divided among the parties according to their shares. Defendant's further case is that they acquired properties of Item No. 9 Schedule C by eight separate sale -deeds. All the acquisitions in the name of the members of the family or others are their self acquired properties which any aid and assistance from the joint family. As a matter of fact, the joint family had no sufficient nucleus and the acquisitions were never made out of the said nucleus or out of the joint family funds. It is stated that the lands of Khata No. 1 of village Rasda exclusively belongs to Chinta Devi and the land of Item No. 7 belongs to Ghurni Devi. These properties are not joint family properties. Defendant's further case is that the land of village Gegda measuring 1.56 acres of plot No. 117 under Khata No. 2 were jointly acquired by plaintiff No. 4 and defendant No. 4 but subsequently there was division in the aid property and both plaintiff No. 4 and defendant No. 4 are in separate possession of this land. The defendants in their pleadings have described the manner of acquisition of all those properties separately and out of their own income.;