D.G.R.PATNAIK, J. - (1.) BOTH these appeals have been filed by the defendants in two separate sets against a common judgment. First Appeal No. 61 of 1996 by the appellant Ram Kishan Agarwala (defendant No. 2) has been filed against the judgment dated 4.1.1996 and 19.11996 passed by the Sub Judge 2nd Dhanbad in Title (Partition) Suit No. 44 of 1994 whereby the suit was decreed in favour of the plaintiff respondents and against the defendants 1 to 4, 5 to 7 and 13 to 14 on contest and without contest against the other defendants declaring the plaintiffs' 1/4th share in the properties mentioned in items no 1 to 4 of the schedule to the plaint. First Appeal No. 63 of 1996R has been filed by another set of defendants against the same judgment and decree of the leaned court below. A cross objection in this appeal has been filed under Order 41 Rule 22 of the Code of Civil Procedure by the plaintiffs/respondents against part of the impugned judgment whereby the plaintiffs' claim for partition of items 5 to 9 of the properties described in the schedule to the plaint was refused.
(2.) THE suit was filed by the plaintiff -respondents against the appellants/defendants for a preliminary decree for partition of the suit properties described in the plaint, according to the shares of the parties and for carving out separate portions in respect of the properties according to their shares by appointment of a Commissioner for the purpose. Further prayer was made for restraining the defendants No. 5,6,7 from proceeding with the construction work over the land described in item No. 2 of the schedule, and also against the defendants 1, 2,13 and 14 from proceeding to enter into agreement and consequent sale of the properties described in item no 3 of the schedule. The claim of the plaintiff for partition was based on the following pleadings: The plaintiff and defendant Nos. 1 to 4 and 8 to 12 and 16 to 19 are co -sharers in respect of the suit properties described in item 1 to 9 in the schedule to the plaint which were acquired by their common ancestor namely Nand Kishore Agarawal and also from the joint family fund and the same continued to be held jointly by all co (sic)sharers. It is alleged by the plaintiffs that the defendants 1 and 2 had clandestinely executed a sale deed in favour of defendants 6 and 7 in respect of item No. 2 of the suit properties, though the said properties stand recorded in the municipal survey records in the name of Gajanand Agarwal who was the father of the plaintiffs 1 and 2 and their brothers namely defendants 1 and 2 and the father of defendant No. 4: The defendant No. 5 was in occupation of the premises described in item no 2 of the suit properties as a tenant having his sweetmeat shop therein. The clandestine dealings of the defendants 1 and 2 came to light when the defendant no 5 demolished the shop premises of item No. 2 of the suit properties for making interior constructions and to restrain him, the plaintiffs had to initiate proceedings under Sec. 144 of the Code of Criminal Procedure on 22.12.1993 and it was in course of the said proceedings that the defendants disclosed that a family partition between the co -sharers was made in respect of the joint family properties on 13.4.1960 and pursuant to the partition, item no 2 of the suit property was allotted to the share of Gajanand Agarwala (father of Plaintiff No. 1) who had executed a sale deed alienating the said property on 27.12.1960 in favour of his sister Saraswati Devi (defendant No. 8) for consideration and that Saraswati Devi had also entered into an agreement of sale on 17.11.1993 in respect of the suit properties with defendants No. 6 and 7 (members of the family of defendant No. 5). Declaring that the aforesaid claim of the defendants was totally false and baseless, the plaintiffs have denied that there was any family partition at any time, much less on 13.4.1960 and have also alleged that the deed of partition and sale deed which was allegedly prepared on 27.12.1960 are forged and fabricated documents which have been created by the defendants in collusion with each other. The further claim of the plaintiffs is that a Title (Eviction) Suit No. 491 of 1962 was filed by Mostt. Bhagwati Devi (wife of late Nand Kishoro Agarwal) in the aunt of the Minis if, Dhanbad for eviction of her son Gajanand Agarwal from the premises, described in item No. 1 of the schedule, on the ground that the defendant Gajanand Agarwal was a tenant in the State Of Bihar (Now Jharkhand) And Ors. Versus Hari Lal premises since after the family partition on 13.4.1960, and that the rent for the premises was paid by Gajanand Agarwala at the rate of upees sixty per month. In the said suit, Gajanand had filed his written statement denying the claim of family partition as also the claim of his being a tenant in the said premises. The suit was ultimately dismissed on the funding that there was no relationship of landlord and tenant and in the absence of any appeal preferred by the plaintiff in the said suit, the judgement and decree passed in Title (Eviction) Suit No. 491 of 1962 has remained conclusive and operates as res judicata in respect of the issues relating to the family partition. The plaintiff's further claim is that it was in course of the proceedings under Sec. 144 Cr.P.C. that it came to light that defendant No. 1 had illegally entered into an agreement on 10.10.1993 with defendants 13 and 14 who were tenants in the premises mentioned in item No. 4 of the schedule to the plaint, for sale of the said properties and had accepted Rs. 1,00,000.00 (rupees one lakh) as part payment of the consideration amount. The plaintiffs have challenged the said agreement on the ground that the properties being joint family property, defendant No. 1 had unauthorisedly entered into an agreement for sale of the said property without the consent of the other co -sharers and as such the said agreement is illegal and inoperative. Further contention of the plaintiffs is that in view of the aforesaid illegal and clandestine dealings and transactions of the defendants, on 5.2.1994, the plaintiffs had demanded partition of the joint family property from the defendants but on refusal of such demand, the plaintiffs filed the suit for partition. The suit was contested by the defendants 1 to 4 whose main defence was that there was no unity of title and possession over the suit property, inasmuch as by virtue of a partition dated 13.4.1060 the entire joint family properties were divided amongst the co -sharers and each of the co -sharers had come into possession of his respective shares as detailed in the deed of partition and thus, the partition was acted upon by hem. Late Gajanand Agarwal (father of plaintiffs 1 and 2 and husband of plaintiff No. 3) was also a party to the deed of partition and he had executed a registered sale deed on 27.12.1960, in respect of the properties allotted to the share, in favour of Sarswati Devi (defendant No. 8) wherein he had categorically admitted partition of the joint family property as made on 23.3.1960 and had also acknowledged that the properties sold by him to his sister Saraswati Devi, was his exclusive share on partition. After executing the registered sale (deed, Gajanand Agarwal, by letter dated 29.1.1961 informed the tenants who were in occupation of the premises which he sold to defendant No. 8, about the transfer of his right, title and interest in the properties in favour of defendant No. 1 and had asked them to attorn the said purchaser as their land lady in respect of the premises. The defendants have thus claimed that the plaintiffs are bound by the deed of partition dated 13.4.1960 and they are not entitled to claim further partition in the suit properties described in the schedule to the plaint. The defendants have also claimed that item No. 1 of the suit property is the residential house in which the plaintiffs have been residing, even after demise of their lather who was allowed to live in the said house even after partition though as a tenant under Bhagwati Devi and T.S. No. 491 of 1992 was filed against Gajanand Agarwal by the landlady Bhagwati Devi. The defendants further claim that item No. 2 of the suit property consists of two rooms, each of which was allotted to Gajanand Agarwal and Shiv Karan Agarwal. Later on, Gajanand Agarwala sold his share in the property to his sister Sarswati Devi (defendant No. 8) by virtue of sale deed dated 2.7.12.1960 and after the death of Shiv Karan Agarwal, his heirs (defendants No. 3 and 4) also sold their share to defendant No. 5 by registered sale deed dated 30.12.1993. The further claim of the defendants is that item No. 3 of the suit property was allotted in partition to defendant No. 1 Tarachand Agarwala which is presently in occupation of the tenant S.N. Chatterjee (defendant No. 13) on monthly rent and defendant No. 1 has entered into an agreement with his aforesaid tenant or sale of the said premises. It is further claimed that item No. 4 of the suit property was allotted to the share of Bhagawati Devi who by virtue of her will executed on 1.8.1991, had bequeathed the said property to his son Ram Kishan Agarwal and widow Smt Sita Devi of S.K. Agarwala. The defendants have further claimed that item no 5 and 8 of the schedule to the plaint are serf acquired properties of defendant No. 18 namely Urmila Devi who had purchased the same by virtue of sale deeds dated 7.1.1986,16.2.1989, 28.1.1974 and 23.2.1985 and the properties mentioned in item No. 5 and 8 of the schedule did never constitute any part of the joint family properties. The defendants add that defendant No. 18 being the absolute owner of the aforesaid properties, had constructed her house on the lands. The defendants further claim that the premises mentioned in item No. 6 of the schedule is a tenanted premises wherein defendant No. 1 has been running his exclusive business without any concern with any other member of the family. The defendants have further claimed that the movables mentioned in item No. 9 of the schedule to the plaint are self acquired properties of those in whose names they stand recorded and such properties were not acquired from any joint family fund. The defendants have further chimed that there is no such properties as mentioned in item No. 7 of the schedule. On the aforesaid grounds, the defendants have claimed that the suit being for partition, is not maintainable since the plaintiffs have no cause of action at all.
(3.) DEFENDANTS 5 to 7 and defendants 13 and 14 are two sets of purported purchasers of the properties mentioned in items No. 2 and 3 of the ; schedule. These defendants have also contested the suit by filing separate written statements. They have supported the claim of the defendants 1 to 4 affirming the purported previous partition between the plaintiffs and the defendants co -sharers on 13.4.1960. Defendants 5 to 7 have assessed their rights over item No. 2 of the suit properties on the ground that the said properties were sold by Gajanand Agarwala to Sarswati Devi who, in her turn had entered into an agreement for sale of the said premises with defendant No. 7 and had also put defendant No. 7 in possession of the property in question. These defendants have also claimed that defendant No. 3 Sita Devi along with her sons had sold away her right, title and interest in the remaining 1/2 share of the properties mentioned in item No. 2 in their favour on which these defendants had constructed a shopping complex in exercise of their exclusive right, title and interest. The defendants 13 and 14 have claimed that defendant No. 1 had executed an agreement for sale of the properties mentioned in item No. 3 of the schedule with them on 10.10.1993 and had received a sum of rupees one lakh as advance consideration amount from them. These defendants have also claimed that they were originally in occupation of the premises as tenants under defendant No. 1 and they used to pay rent to defendant No. 1.;