VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the defendants appellant has been preferred against the impugned judgment and preliminary decree dated 28.07.2001 and 13.08.2001 respectively passed in title partition suit No. 683 of 1997 by Shri Anirudh Prasad Sharma, 3rd Subordinate Judge, Doeghar whereby and whereunder the said suit was decreed for carving out a separate takhta of half share in favour of the plaintiff -respondent 1st set in the suit property by appointment of a Pleader Commissioner.
(2.) THE plaintiffs (who are respondent 1st set in this appeal) had filed the said suit for metes and bounds partition of the suit property detailed in Schedules I, II and III at the foot of the plaint in which they have claimed half share and further a relief has been sought that any portion of the suit property if found alienated by defendant -appellant Nos. 1 and 2 or their father be allotted to their share. The case of the plaintiffs -respondent 1st get is that Harihar Dutt Dwari is the common ancestor of the parties who are the members of joint Hindu Mitakshara family and he had two sons, namely, Badri Narain Dwari and Kedarnath Dwari. The said Badri Narain Dwari died leaving behind his two sons, namely, Indra Narain Dwari and Brahm Narain Dwari and a daughter Sarojini Devi. Plaintiff - respondent No. 1 Nil Narain Dwari is the son of Indra Narain Dwari aforesaid and plaintiff - respondent No. 2 Rupesh Narain Dwari is the son of said Nil Narain Dwari. Defendant -respondent No. 8 Fekni Devi is the daughter of the said Indra Narain Dwari who had died in the year 1968. Brahm Narain Dwari died on 28.03.1991 leaving behind his two sons Praful Narain Dwari, and Anil Narain Dwari and three daughters, namely Manju. Meera and Durga. The said Praful Narain Dwari has two sons, namely Lalit Narain Dwari and Krishna Nand Dwari @ Pintoo Dwari whereas Anil Narain Dwari has a son Amulya Narain Dwari and they all figure as defendants in the suit besides Fekni Devi aforesaid. Kedar Nath Dwari aforesaid filed title partition suit No. 51 of 1957 against said Badri Narain Dwari for partition of the joint family property and during the pendency of the said suit said Badri Narain Dwari has died and Indra Narain Dwari, Brahm Narain Dwari and Sarojini Devi were substituted in his place, and in the said partition suit the joint family property was partitioned in which Kedar Nath Dwari got half and the descendants aforesaid of Badri Narain Dwari jointly got the other half. Said Sarojini Devi died issueless on 13.01.1994. The ancestral properties allotted to Indra Narain Dwari, Brahm Narain Dwari and Sarojini Dwari jointly in the said partition suit of 51 of 1957 described in the schedules of this plaint is the subject matter of partition in this suit. The case of the plaintiff -respondent 1st set further is that Indra Narain Dwari, being the elder full brother of Brahm Narain Dwari, was of unsound mind and as such after the death of Badri Narain Dwari the said Brahm Narain Dwari became the karta of the joint family and started managing the entire suit land and Indra Narain Dwari aforesaid died in the year 1968 in the state of jointness with him leaving behind his son, the plaintiff -respondent No. 1 and a daughter defendant No. 9, Fekni Devi. Brahm Narain Dwari also died in the year 1991 in the state of jointness with the plaintiff -respondent 1st set. The plaintiff -respondent No. 1 Nil Narain Dwari became a lecturer in S.R College Dumka and, thereafter, he was transferred to Deoghar College, Deoghar and in view of the nature of his job it was not possible for him to look after the entire joint family properties and as such the entire joint family property including jajmanika came in the management of defendant -appellant No. 1 Praful Narain Dwari and defendant -appellant No. 2 Anil Narain Dwari. It is alleged that Schedule III properties of the plaint are two residential houses and during the life time of Indra Narain Dwari, the defendant -appellant was residing in the house with his family members described in Schedule III/A of the plaint by way of family arrangement and Indra Narain Dwari was residing with his family in the house described in Schedule III/B of the plaint and said Indra Narain Dwari and Brahm Narain Dwari were residing in two separate house under mutual understanding without any partition by metes and bounds and the plaintiff - respondent 1st set has half share in both the houses and on the death of Sarojini Devi issueless in the year 1994 her share in the suit property devolved upon the parties to the suit. It is alleged that the parties to the suit are in possession of the ancestral property including jajmanika as per their convenience without any metes and bounds partition. The plaintiff -respondent 1st set asked for the metes and bounds partition for the suit properties in the year 1995 which was evaded by the defendant -appellant and finally in the month of May, 1997 they refused for the metes and bounds partition. The plaintiff -respondent 1st set has claimed half share in the entire suit properties.
(3.) THE further case of the plaintiff -respondent is that plaintiff -respondent No. 1 Nil Narain Dwari has purchased a land in his name and in the name of his wife in Mauza Nilkanthpur, Deoghar from one Ranjit Prasad by virtue of the registered sale deed in the year 1989 from the savings of his personal earning as he was working as lecturer of Mathematics and he stands mutated in respect thereof and, thereafter, plaintiff -respondent No. 2 joined service in an American Ship Company in the year 1993 and out of the savings from his earning he purchased 7 kathas of land in Mauza Nilkanthpur, Deoghar in his name from one Sita Kant Jha and Smt. Krishna Jha by virtue of a registered sale deed dated 16.04.1998 and he also stands mutated in respect thereof and the said land is the self acquired properties of the plaintiffs -respondent 1st set and no liable to partition and the said self acquired properties is not the subject matter in this suit.;