HARI SHANKAR PRASAD, J. - (1.) THIS appeal arises out of the judgment dated 3.9.1991 and decree dated 13.9.1991 passed in Title (Partition) Suit No. 86 of 1988 whereby and where under the learned Subordinate Judge, V at Ranchi decreed the suit in part in favour of the plaintiffs.
(2.) THE case of the plaintiffs -appellants in brief is that Lachan Lal Bhagat was the common ancestor of the parties and he had sixty acres of agricultural land in different villages in Ranchi District. Out of income from agricultural and non -agricultural properties, he on 20.4.1934 acquired ten kathas of land in Old Commissioner 'scompound mentioned in Schedule -B of the plaint in the name of Nandlal Bhagat who was his only son and the building was constructed over the said land. After the death of Lachan Lal Bhagat in 1956 and soon thereafter Nandlal Bhagat too died on 13.10.1973 and after death of Nandlal Bhagat, who left behind him three sons namely, Santosh Lal Bhagat, Mahendra Lal Bhagat and Ranjit Lal Bhagat. His one son Basant Lal Bhagat pre - deceased him in 1969 leaving behind his widow Santi Devi DW 6 and five sons namely Pradeep DW 1, Promod DW 2, Jayant DW 3, Ashok DW 4 and Alok DW 5 as shown in Schedule -A of the plaint. On 20.4.1959 one Katha seven Chatar and 27 Sqr.ft of land of plot No. 1458 (Part) Ward No. VII within the Ranchi Municipality situated at Burdwan Compound was acquired out of joint family fund and from the contribution made by the earning members of the joint family property which has been shown in Schedule -D of the plaint. It is alleged that there was partial partition of the Schedule -B property by a registered deed dated 30th July .1968 and the properties remained joint of Schedule -B has been described in Schedule -C. In 1971 another partial partition amongst the descendants of Lachan Lal Bhagat took place with regard to agricultural land except Schedule - E property. After death of Nandlal Bhagat, properties described in Schedule -C, D and E of the plaint remained joint and partition of these properties has been sought for. Plaintiffs made his father as defendants No. 9 but he did not take interest in ancestral properties and, therefore, defendant Nos. 1 to 8 taking advantage of such nature of defendant No. 9 deprived the plaintiffs from their legitimate interest in the ancestral joint family properties which was mentioned in Schedule -C, D and E of the plaint and the father of the plaintiffs who is defendant No. 9 remained in clutches of the defendant Nos. 1 to 8 and plaintiffs could not get legitimate and equitable shares in the partial partition effected in the year 1968 and 1971 respectively when they were minors. The plaintiffs share in the joint family properties could not have been separated by defendant No. 9, their father. Plaintiff No. 1 in the year 1985 was enrolled as an Advocate at Ranchi and plaintiff No. 2 who was student, came to Ranchi in 1985 and demanded partition from the defendants who did not pay heed to his request and, therefore, cause of action arose on 10th August 1987, then suit was filed on 7.9.1987 before the Subordinate Judge, Khunti. The plaintiff claims l/8th share in Schedule C, D and E property, although during trial Schedule -F, G and H have been added but no relief have been sought with regard to these three Schedules. Defendant No. 1 to 6 filed a joint written statement stating therein that there is no unity of title and possession of the parties over the suit land. They have denied that Lachan Lal Bhagat had any agricultural as well as non -agricultural properties in the village Shaheda, Baxidih and Jospur within the P.S. Ormanjhi but Nandlal Bhagat had acquired the properties worth nine acres in village Jospur, 2.62 acres of land in village Baxidih and 4.58 acres of land in village Shaheda and he had purchased the Schedule -B property and constructed a double storeyed building over the same out of his own earning and personal income. On 30.7.1968 he made a registered partition amongst himself and his four sons and all got separate possession except the properties shown in Schedule -C of the plaint which remained unpartitioned due to the nature of the property and remained for common use. There was an agreement that the rent collected from the southern block of Schedule -B house which contains stairs on the ground floor and two flats on the upper floor will be used to pay the municipal taxes but branch started with the agreement after the death of Nandlal Bhagat, hence in the year 1975 an agreement was arrived at in between the defendant Nos. 6 to 9 that the lower portion of the southern block will be made two units whereas upper portion will also be made two units and each of the units will be given to each of the four brothers or their children and they will collect rent from their units and accordingly, all the four sons are in exclusive possession of their separate units of the southern block of the house.
(3.) SCHEDULE -D property was purchased by defendant Nos. 7, 8 and 9 and their brother Basant Lal Bhagat from their own personal income for a sum of Rs. 14,500/ - in the name of Mahendra Lal Bhagat (defendant No. 8). After the alleged purchase, defendant No. 9 who is father of the plaintiff made request for refund of his contribution and purchased his shares. Later, there was a written consent made by the defendant No. 9 and there was a registered family settlement between Nandlal Bhagat, Basant Lal Bhagat, Santosh Lal Bhagat, Mahendra Lal Bhagat, Ranjit Lal Bhagat and Pradeep Kumar Bhagat by which l/4th share in the house was given to defendant Nos. 7 and 8 each whereas the remaining 1/2 share belonging to Basant Lal Bhagat was given to Pradeep Kumar Bhagat as Ranjit Lal Bhagat disclaimed his entire interest in that land. After the said partition, the defendant No. 1, 7 and 8 came in their respective possession. Schedule -D property was alleged to have been purchased by defendant No. 7, 8 and 9 and their brother Basant Lal Bhagat from their own personal income for a sum of Rs. 14,500/ - in the name of Mahendra Lal Bhagat (defendant No. 8). After the alleged purchase, defendant No. 9 who is father of plaintiff, made a request for refund of his contribution to meet his urgent need and Basant Lal paid his contribution amount to him and purchased his share. With the written consent of defendant No. 9, there was a Registered family settlement between Nandlal Bhagat, Basant Lal Bhagat, Santosh Lal Bhagat, Ranjit Lal Bhagat and Pradeep Kumar Bhagat, Mahendra Lal Bhagat by which 1/4th share in the house was given to defendant No. 7 and 8 each, whereas the remaining 1/2 share belonging to Basant Bhagat was given to Pradeep Kuamr Bhagat as Ranjit Lal Bhagat disclaimed his entire interest in that land. After the said partition, the defendant No. 1, 7, and 8 came in their respective possession and made construction of their houses in their respective portion of land from their own income. Further case of the defendant No. 1 to 6 is that on 1.10.1971 Nandlal Bhagat (Late) and defendant No. 6 to 9 got the entire agricultural land of village Jamundag partitioned amongst different heirs of Nand Lal Bhagat and all the sharers came in exclusive possession since then. The land shown in Schedule -E was already partitioned amongst the heirs of Nandlal Bhagat. In partition dated 1.10.1971, the land allotted to Nandlal Bhagat is available for partition after the death of Nandlal Bhagat as shown in Schedule -III of the written statement. It is further stated that lands situate in village Jaspur Shaheda and Buxidih are available for partition as shown in Schedule -IV of the written statement. The defendant No. 9 preferred Title Suit No. 157/87 before Sub -Judge, Ranchi but he withdrew the same unconditionally. The plaintiffs were duly represented in 1968 -69 and 1971 partition through their father and natural guardian and their interest were protected. It is further stated that Schedule -C, D and E property are also not joint.;