HARI SHANKAR PRASAD, J. - (1.) THIS second appeal, at the instance of the appellants, is directed against the judgment dated 10.3.1989 and decree dated 29.3.1989 passed in Title Appeal No. 36/88/10/88, whereby and whereunder the learned 3rd Additional District Judge, Giridih allowed the appeal and set -aside the judgment and decree of the lower Court.
(2.) THE case of the plaintiffs is that they filed a title partition suit for partition of the property claiming 1/6 share but the defendants appeared and filed written statement. The facts, which emerge from the pleadings of the parties being admitted case, are that Jugal Mian was the common ancestor and he had a son Jodhi Mian @ Mustak Mian and after his death Jodhi Mian inherited his property. Jugal Mian had five daughters but according to custom of family, daughters did not inherit any property. Jodhi Mian had two wives and from one wife he had two sons, who are defendant Nos. 1 and 2 here in the suit and he has four sons and two daughters from the second wife. According to custom in the family, the daughter did not inherit any property and one of the son is the plaintiff and rest three sons have been arrayed as defendant Nos. 3 to 5 and daughters and sisters have been arrayed as respondent Nos. 6 to 12 in order to avoid any complication. It is said that Jodhi Mian has also acquired some lands by registered sale -deed and some land by hukumnama and thus he acquired in his possession more than 18 acres of land but he did not partition the land. On the other hand defendant Nos. 1 and 2 claimed that Jodhi Mian gave 9.52 acres of land to the mother of defendant No. 1 as oral gift and to the mother of the plaintiff he gave another 9.52 acres of land and on the pleadings of the parties the learned Court of Munsif decreed the suit and being aggrieved by the judgment and decreed, the defendant Nos. 1 and 2 filed title appeal and in the title appeal they won the case and the appellate Court reversed the judgment and decree of the Court of Munsif and allowed the appeal and against the judgment and decree passed by the appellate Court, the plaintiff has filed this second appeal, and while admitting this appeal the following substantial question of law has been formulated as under : "In view of the fact that the plaintiff -appellant pleaded that Jodhi Mian gifted 9.52 acres of the land to Jan Mohammad and Mohammad Ajij and 9.52 acres of land in favour of the plaintiffs, whether the same can be said to be a family arrangement under Mohammedan Law as is held by the learned Court of appeal below in paragraph 24 of its judgment - Learned counsel for the appellants submitted that by mistake in the substantial question of law it has been alleged that plaintiff -appellant pleaded that Jodhi Mian @ Mustak Mian gifted 9.52 acres of land to Jan Mohammad and Mohammad Ajij and 9.52 acres of land in favour of the plaintiffs but this was pleaded and by mistake this has come in the substantial question of law that in place of plaintiff -appellant, it should be defendant -respondent and their case was like that Jodhi Mian gifted 9.52 acres of land by oral Hibba to the defendant -respondent Nos. 1 and 2 in the year, 1956 and the rest 9.52 acres of land was gifted to defendant -respondent Nos. 3 to 5 in the year, 1972 and, therefore, it was claimed on behalf of the defendant -respondent that they have been given exclusive possession over the land which has been gifted to them by oral Hibba by Jodhi Mian in favour of respondent Nos. 1 and 2 on 1.1.1956 and defendant -respondent Nos. 3 to 5 in the year, 1972 and they have acquired right and title by way of adverse possession. It was also pointed out that the learned appellate Court is not correct in making out a third case that Jodhi Mian gave away the land to the defendant -respondent Nos. 3 to 5 and defendant -respondent Nos. 1 and 2 by way of family arrangement as both wives of Jodhi Mian used to quarrel among themselves and it was neither the case of the plaintiff nor it was case of defendant and, therefore, the learned appellate Court was not justified in making out a third case that Jodhi Mian gave away the land to his two wives for their maintenance by way of family arrangement it was also pointed out that since learned Court below had decreed the suit on the basis of evidence adduced by both the parties and documents produced on behalf of both sides. But since appellate Court did not find any material to differ with the judgment and decree of the learned Court of Munsif, hence appellate Court made out a third case of family arrangement which was neither the case of the plaintiff nor the case of the defendant -respondent and it is well -settled principle of law that parties cannot go beyond pleadings nor the Court can go beyond the pleadings and make out a third case and, therefore, findings of the learned Court that list were given away to both the wives by way of family arrangement is not proper and correct and findings arrived at by the learned Court of Munsif was correct.
(3.) ON the other hand, learned counsel for the respondents submitted that no partition ever took place during the lifetime of Jodhi Mian and soon thereafter when partition was demanded, then new story has been set up.;