VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the defendant -appellant has been preferred against the impugned judgment and decree dated 18.10.2002 and 29.10.2002 respectively passed in Title Appeal No. 28 of 2000 by Shri Binod Kumar Lal, Additional District Judge, Fast Track Court No. 4, Hazaribagh whereby and whereunder the judgment and decree of the trial Court passed in Title (Partition) Suit No. 79 of 1995 were set aside and appeal was allowed and the case was remitted to the trial Court for a fresh decision.
(2.) THE plaintiff -respondent had filed the said suit for declaration of the registered deed of gift dated 15.4.1988 executed by the original defendant No. 1 in favour of his wife defendant No. 2 as null and void and collusive as the original defendant No. 1 was not competent to execute the deed of gift and the said deed of gift is not binding on the plaintiff and also for partition of the suit property detailed in Schedule -A of the plaint for carving out his half share therein by appointment of the Survey Knowing Pleader Commissioner. The suit land appertains to Plot No. 902 of Khata No. 6 and Plot Nos. 903 and 907 of Khata No. 2 having an area of 1.71 acres situate at village Lodahama, Police Station Ramgarh, District -Hazaribagh, The case of the plaintiff -respondent, in brief, is that Chamu Gope, the common ancestor of the parties died leaving behind his four sons, namely, Khedan Gope, Bhukhlal Gope, Nanhak Gope and Balak Gope. Said Balak Gope and Nanhak Gope had died one after another prior to 1925 leaving behind their daughters and they have no son. Khedan Gope thereafter died in the state of jointness with his brother Balak Gope who inherited the land of Khata Nos. 2 and 6. The said Balak Gope had three sons, namely, Jhutan Gope, Bansi Gope and Bishan Gope. The said Jhutan Gope died leaving behind his three sons, namely, Sona Gope (who died during the pendency of this appeal before the Appellate Court), Chetlal Gope and Peman Gope and they are the plaintiffs in the suit. Bansi Gope is the defendant in the suit and he had also died during the pendency of the appeal before the Lower Appellate Court and his heirs have been substituted in his place. Bishun Gope died in the year 1940 leaving behind his married daughters who had no concern or connection with the suit land. The suit land appertains to Khata Nos. 2 and 6 aforesaid, which stands in the name of the Khedan Gope as Adh -Bataider Kaimi. The further case of the plaintiff -respondent is that all the four sons of Chamu Gope who were the members of joint Hindu Mitakshara family and there was unity of title and possession between them in respect of the suit land and said Khedan Gope had died in the state of joint - ness with his brother Balak Gope. After the death of Balak Gope, his three sons aforesaid jointly inherited the suit land and after the death of Bishun Gope the suit land was inherited by Jhutan Gope and Bansi Gope jointly and after the death of Jhutan Gope, the plaintiffs along with Bansi Gope inherited the same jointly and they are in joint cultivating possession over the same and there has been no metes and bounds partition between the plaintiffs and the defendant in respect thereof. The further case of plaintiff is that Bansi Gope had executed a deed of gift on 15.4.1988 in favour of his wife defendant No. 2 Karmi Devi in respect of the suit land which is a joint family property of the parties to this case and the said deed of gift of joint family land is void and original defendant No. 1 was not competent to execute the deed of gift in respect thereof and the said deed of gift was also never acted upon. It is also alleged that the plaintiffs came to know about the said deed of gift on 1.6.1995 and after obtaining its certified copy they came to know that the original defendant No. 1 is claiming exclusive possession over the suit land on the ground of having obtained the said land by settlement from the landlady Maharani of Ramgarh, Padma in Sambat 2003 who had acquired the said land by virtue of auction sale vide Case No. 41 of 1947 -48. It is also alleged that on enquiry it transpired that the suit land was never auction sold in the said case and the original defendant No. 1 without any exclusive right, title and interest and possession in respect thereof gifted the suit land on the basis of a forged hukumnama in favour of his wife defendant No. 2 who was never come in possession over the same. It is alleged that still the suit land is in joint cultivating possession of the parties and the mutation in favour of the defendant No. 2 in respect of the suit land is illegal and it is a collusive order without making any enquiry. Thereafter the original defendant being confronted about the illegal deed of gift promised to execute a deed of nullity in respect of thereof but inspite of several demands they evaded to execute a document in respect thereof and hence the necessity of the suit.
(3.) THE case of the defendant -appellant, inter alia, is that in the life time of Chamu Gope all his four sons were separate and according to their physical possession of the land, the cadastral survey records of right was prepared. Khedan Gope died issueless in the year 1932 and after his death, the ex -landlady resumed the suit land and thereafter original defendant Bansi Gope in auction sale made by the ex -landlady got settlement of the suit land on 31.3.1948 (Sambat 2003) and there was no unity of title and possession between the parties over the suit land and none of the sons of Chamu Gope was ever joint. It is alleged that Nanhak Gope died issueless in the year 1940 and Bhukhlal Gope died in the year 1938 leaving behind his widow and one daughter Rukhni married to Bahira Gope, who settled as gharjamai inherited the properties left by Bhukhlal Gope. It is also alleged that Bishun Gope died in the year 1958 leaving behind his three daughters and they had right to get partition of the land of Khata Nos. 38, 39, 9 and 48 and other Khatas which have not been brought by the plaintiff in the suit as suit properties and the case of the plaintiff is not maintainable for partial partition. It is alleged that the survey authority at the time of the cadastral survey after enquiry recorded the suit land appertaining to Khata Nos. 2, 6 and 9 in the name of. Khedan Gope who died issueless. The suit land were abandoned and as such the landlady resumed the suit land and thereafter taking Salami settled the suit land with Bansi Gope and since then he is in exclusive possession over the same as of his rights and he has rightly executed a deed of gift in favour of his wife defendant No. 2 and the said deed of gift is valid, legal and in accordance with law and the suit lands stands mutated in the name of defendant No. 2 after proper enquiry. It has also been alleged that the suit of the plaintiff is bad for non -joinder of all co -sharers including the three daughters of Bishun Gope and they are the necessary parties to the suit and in their absence, the suit is not maintainable.;