- (1.) THIS appeal has been preferred by the plaintiffs/appellants against the Judgment dated 27.01.2005, passed by Sub Judge No. - I, Simdega in connection with Partition Suit No. 4 of 2004 and Decree signed on 05.02.2005, whereby the learned Sub Judge has decreed the suit in part and ordered to partition the land pertaining to Khata No. 72 and dismissed the claim of the plaintiffs for partition against the land pertaining to Khata No. 38.
(2.) THE appellants have filed a suit for partition in the Court of Sub Judge I, Simdega vide Partition Suit No. 04/2004 and made averments in the plaint that the lands under Khata Nos. 38 and 72 of village Sizang, P.S. - Bano, Thana No. 67, District Simdega, fully described in Schedule -A of the plaint, are the ancestral property of the plaintiffs and the defendants. The land pertaining to Khata No. 38 of village Sizang, as per the last survey, is recorded in the name of Mostt. Dhelki, daughter of Berga Pahan and Kuba Pahan, S/o. Batura Pahan, Bahissa (by share) Barabar (equal), whereas the land pertaining to Khata No. 72 as per Column No. 2, is recorded jointly in the name of Lodo Pahan and Masih Pahan, sons of Lurki Pahan, Mostt. Dhelki, D/o Berga Pahan - one share each in equal shares and Kuba Pahan, son of Batura Pahan one share. The appellants have also described the geneology in paragraph -3 of the plaint. The plaintiffs as well as defendants have claimed themselves to be the descendant of the recorded tenant and, therefore, they are entitled for partition in the property described in the schedule land. The parties are members of the Scheduled Tribes community and Munda by caste and they are governed by their own customary law in the matter of inheritance and succession. It is further contended that Mostt. Dhelki, daughter of Berga Pahan died unmarried and another recorded tenant Masih Pahan died without having any male issue. No partition by metes and bounds ever held between the parties though they were cultivating the lands lying in their respective possession. The cause of action for filing of this suit arose on and from February, 2004 when the request for partition made by the plaintiffs were turned down and refused by the defendants.
(3.) THE suit land has been valued at Rs.3 Lac. but the suit was filed for partition, hence fixed Court Fee of Rs.250/ - was paid. The defendants, after service of notice, appeared and filed their respective written statements stating therein that the plaint is false, frivolous and vexatious and no cause of action ever arose. The suit is barred by the principle of estoppel, waiver and liable to be dismissed with compensatory costs. The suit is barred by Law of Limitation and also for non joinder of necessary parties. The defendants have made out a specific case that the land pertaining to Khata No. 38, as shown in Schedule -A of the plaint, has been made subject matter of the suit with an intention to grab the same. Further averments is that the suit is barred by partial partition of the land of Khata No. 71 of village Sizang, P.S. - Bano, which is recorded in the name of Lodo Pahan and Masih Pahan, sons of Lurki Pahan in equal shares. For a complete and effectual partition, this land should be subjected to partition amongst the parties. It is specifically averred that the lands pertaining to Khata No. 38 of village Sizang are in exclusive possession of the defendants since 80 years and they are the exclusive owners of said land within the knowledge of all concerned including the plaintiffs and their ancestors. At no point of time any objection had been raised by any concerned. The land under Khata No. 38 of village Sizang is recorded in the name of Mostt. Dhelki, daughter of Berga Pahan and Kuba Pahan, son of Batura Pahan in the Revisional Survey Records of right as a Kaimi Rayati equal share for both and said land under Khata No. 38 vested upon Kuba Pahan and the defendants have succeeded and inherited the same as their exclusive property. The plaintiffs have no right, title, interest over the plots under Khata No. 38.;