D.G.R.PATNAIK, J. - (1.) THE appellant in this appeal is the plaintiff in the original suit. She alongwith defendant nos. 1, 2 and 3 are the legal heirs of the common ancestor, Buddhu Dusadh. The Respondent no. 5 is the son of the defendant no. 2. The plaintiff filed the suit before the court below for partition of the properties described in Scheduled -'A' and Schedule -'B' of the plaint claiming one -fourth share in the same besides mesne profits of the suit properties. The Suit, registered as Partition Suit No. 37 of 1993 in the court of the Sub -Judge, Ranchi was dismissed on contest vide judgment dated 25.09.1996. The instant appeal by the plaintiff has been filed against the aforesaid impugned judgment and its corresponding decree. According to the plaintiff, the lands recorded in Revisional Survey Khata No. 147, was originally recorded in the name of' the plaintiff's father Buddhu Dusadh and his brother Nanka Dusadh. The lands were partitioned between the two brothers, and thereafter each of them had been coming in separate possession of the respective shares. The suit lands were allotted to the share of the plaintiff's father, Buddhu Dusadh. Buddhu Dusadh died in the year 1971 leaving behind him the plaintiff and the defendants 1, 2 and 3 as his legal heirs and successors, and they have been coming in joint possession of the movable and immovable properties left by Buddhu Dusadh. The properties jointly held include the properties subsequently acquired out of the joint fund of the family and there has been no partition of any property between the heirs of Budhu Dusadh. While this situation had continued, the joint family had decided to start a business of Gas Agency and the investments for the business was made from the joint funds of the joint family in the year 1993. The business was established under the name and style of M/s. Jivasis Gas Service and the defendant no. 3, being the only unemployed member of the family, had filed an application before the concerned authorities of M/s. Hindustan Petroleum Corporation Ltd. for the grant of license for running the Gas Agency. The license was granted in the name of the defendant no. 3 whereafter the business was established with the investments from the joint family funds. The claim of the plaintiff is that she has one forth undivided share in the said business and yet she was deprived of her share in the profits of the said business. The plaintiff has further claimed that the defendant nos. 1 to 3 have been misappropriating the profits of the business and have opened several Bank accounts in their own names and in the names of the defendant no. 5 and from the profits of the business, a Maruti Car bearing Registration No. DL -5 -7054 and two Auto Rickshaws were purchased by the defendants and the vehicles also constitute the joint family properties. The plaintiff has further claimed that the land alongwith the house structures standing thereon situated at Mohalla Chadri within ward No. VII, bearing Municipal Holding No. 456, old corresponding to new municipal holding No. 1506 within Plot No. 2171, was acquired in the year 1992 from the joint family funds and from the profits of the Gas agency business and the said house also constitutes the joint family property. The further case of the plaintiff is that in addition to the vehicles, substantial clothes and ornaments worth Rs. two lakhs were purchased from the profits of the Gas Agency business and in addition, two canteens, one at Gandhinagar Hospital, C.C.L. -Ranchi and another at Nai Sarai C.C.L. Hospital, Ramgarh have also been acquired out of the profits of the Gas Agency business. A Bacon factory and land at Sikdari, Ranchi were also acquired from the incomes from the Gas Agency business and all these properties including the Gas Agency business, which have been described in Schedule -'B' of the plaint, constitute the joint family properties. The defendant nos. 1 to 3 had offered contest to the suit by filing their joint written statements. While defendant no. 5 had filed a separate written statements, the grounds taken by him in his written statement are identical to the grounds taken by the defendant nos. 1 to 3. The contesting defendants have challenged the maintainability of the suit claiming that there was no cause of action for the Suit and further that the Suit is barred by limitation, adverse possession and ouster, besides being bad for misjoinder of necessary parties as because defendant no. 4 is not a necessary party. It was also claimed that the suit was barred by the principles of res judicata as because Ramakant Prasad, who is' the husband of the plaintiff had earlier instituted a Title Suit No. 10 of 1988 in the court of the Sub -Judge, Ranchi against Rajendra Kumar, (defendant no. 3) for winding up the partnership firm running in the name and style of M/s. Jivasis Gas Service after settlement of all the accounts concerning the said business. The claim of the husband of the plaintiff was that he alongwith Rajendra Kumar (defendant no. 3) are the joint partners of the aforesaid firm and the business of the firm was started by equal and joint investments of the savings and both of them had entered into an agreement on 14.08.1984, declaring mutually, therein that the Gas Agency business would be run by them jointly and the profits and losses shall be shared equally between them. The plaintiff's husband claimed that he had invested a sum of Rs. 20,000/ - in the said business. The suit was contested by the defendant no. 3 and the same was dismissed and decreed on 31.07.1999 with a finding recorded by the court that the Gas Agency business is the exclusive business of Rajendra Kumar (defendant no. 3). Against the judgment and decree, passed in the aforesaid suit, the plaintiff's husband had preferred an appeal before the Judicial Commissioner, vide Title Appeal No. 19 of 1989. The appeal was also dismissed on 15.06.1991 though for default. A Misc. Petition for restoration of the aforesaid appeal, filed by the plaintiff's husband as Misc. Case No. 19 of 1991 was also dismissed on 27.05.1993. The contention of the defendant is that the present suit has been filed by the plaintiff in collusion with her husband after the earlier suit as filed by her husband was dismissed. The defendants add further that the plaintiff was married in the year 1965 during the lifetime of the father namely, Budhu Dusadh and since after the marriage, she has been living with her husband and in -laws and she had never led any claim of right over the land described in the Schedule 'A' of the plaint. When she intended to take possession of the house properties, mentioned in Schedule -' A' of the plaint, in the year 1972 after the death of the father, she was completely ousted by the defendants and thereafter she had never led any claim of share over the house properties. Nevertheless, the defendants admit that when the father Budhu Dusadh died in the year 1972, he had left behind the Schedule -'A' property only and even though the plaintiff had disclaimed her right and share in the said property, the defendants had voluntarily agreed to give the plaintiff, her l/16th share in the aforesaid house property. The defendants' further claim is that there is no unity of title and possession in respect of the movable and immovable properties left by late Budhu Dusadh and the properties acquired subsequently. The defendants have claimed that since after her marriage, the plaintiff was never a member of the joint family as because she was married, prior to the death of the father. The defendants further contend that late Budhu Dusadh was dependent entirely upon the agricultural produce of the land, mentioned in Schedule -'A' of the plaint and he had no other independent source of income except the usufructs of the lands, which were just sufficient for the maintenance of the large number of the members of the family. The defendants have claimed that there was no joint family nucleus as because the landed properties mentioned in Schedule -'A' did not yield any surplus income for enabling acquisition of any other properties, much less the properties mentioned in Schedule -'B' of the plaint. Denying the plaintiff's claim that the Gas Agency business was started with joint family funds, the defendants have categorically stated that there were no joint family funds at all. The specific case of the defendants is that the defendant no. 3 had applied for obtaining the license for running the Gas agency business in the year 1983 and after being interviewed by the Hindustan Petroleum Corporation Ltd., the defendant no. 3 was given license by the said Company to establish his business of L.P.G. distributorship. The defendant no. 3 also obtained a license under the Explosive Substance Act, which was granted to him on 18.02.1986. He applied for sanction of a loan to the State Bank of India, Andra Branch, Ranchi for a sum of Rs. 1, lakh. He was granted a term loan of Rs. 1 lakh out of which Rs. 50,000/ - was for the construction of the Godown and the sum of Rs. 50,000/ - by way of cash credit facility for investment in the business as initial capital, and thereafter the defendant no. 3 established the Gas Agency business as the sole proprietor thereof. It was when the defendant no. 3 failed to repay the loan amount, the Bank had instituted a Certificate Case vide Certificate Case No. 31 of 1989 against him for realization of sum of Rs. 43,434/ - besides another case vide Certificate Case No. 133 of 1989 for realization of a sum of Rs. 10,081/ -. The defendant no. 3 managed to and cleared all the dues on 14.07.1989, whereafter both the Certificate Proceedings were disposed of. The defendants have further claimed that the Maruti Car and the two auto Rickshaws and the other movable properties mentioned in the Schedule -'B' of the plaint, were purchased from the profits of the Gas Agency business and not from any joint family fund. In fact the Maruti Car was purchased by the defendant no. 5, Jitendra Kumar by his own separate income, which he used to earn by serving as an Accountant/Clerk in the Gas Agency business and from the savings derived by income by way of part time job. Likewise, the defendants have claimed that the double storied building situated at Mohalla Chadri, referred to at Para 16 of the plaint was purchased by the defendant no. 3 and similarly the lands on which a house, which is double storied situated at Mohalla Chadri was purchased by him and the house was constructed by him from the income derived from the Gas Agency business and with money advanced to him by his father -in -law and the said land and building is in the exclusive possession of the defendant no. 3 and though the defendant nos. 1 and 2 are living in the same house but they have no right, title and interest or any share in the said properties. The defendant no. 3, has further claimed that the Bacon factory at Sikdiri was also started by him by his exclusive earnings and with money obtained from the Bank by way of loan, although, on account of persistent loss in the business he had to close the said business.
(2.) ON the basis of the rival pleadings, the learned court below had framed the following issues: 1. Is the suit as framed maintainable? 2. Has the plaintiff any cause of action to sue? 3. Are the properties described in Schedule - 'B' to the plaint joint, acquired out of joint family fund? 4. Was there any sufficient nucleus in the properties, fully described in Schedule -'A' to the plaint, from which any of the items of Schedule -'B' properties were acquired? 5. Is there any unity of title and possession between the plaintiff and defendant has 1 to 3 and 5 in reaped to the properties fully described in Schedule 'B' to the: plaint? 6. Are the properties as pleaded in the written statement, self acquired properties of the defendants? 7. Is the plaintiff entitled to a decree for partition having 1/4'h share in the properties mentioned in Schedule -'B' to the plaint? 8. To what other relief or reliefs, if any, is the plaintiff entitled? It is relevant to note here that the suit was decreed in part on admission in respect of the properties mentioned in Schedule -'A' of the plaint on 16.08.1995 and thereafter the court had proceeded for adjudication of the dispute in respect of the properties mentioned in Schedule -'B' of the plaint. It may also be noted here that the properties mentioned in Schedule -'B' of the plaint have been individually described in item nos. 1 to 7.
(3.) ON the relevant issue nos. 3 to 6, which were taken jointly for determination, the trial court had recorded its finding that the plaintiff has not established that there was joint family nucleus, which could be derived from the Schedule -'A' properties. The trial court has observed that the plaintiff neither averred in her plaint nor adduced any evidence to indicate the amount of income, if any, derived from the Schedule -'A' properties and the savings, which could be considered as surplus from such income. The trial court had proceeded to record its further finding that even though there was no partition of the joint family properties amongst the heirs of the common ancestor in respect of the Schedule -'A' properties but there was no joint family nucleus, which could support the plaintiffs claim that the properties mentioned in Schedule -'B' of the plaint could be acquired from the income derived from the Schedule -' A' properties. The trial court had further recorded its finding that the Gas Agency business mentioned in Item No. 1 of Schedule -'B' was exclusively acquired by the defendant no. 3 and the other properties mentioned in various items of Schedule -'B' were also acquired by the defendant no. 3, some of which were acquired together with the defendant no. 5 and that none of the properties mentioned in Schedule -'B' could be considered as joint family properties nor could the plaintiff claim any share in the same.;