M.Y.EQBAL, J. - (1.) THIS appeal under clause 10 of the Letters Patent is directed against the judgment dated 16.12.1998 passed in F.A.No.13/86 (R)whereby the learned Single Judge allowed the appeal and set aside the judgment and decree dated 12.12.1985 passed by First Subordinate Judge, Hazaribagh in Title Suit No.82/78.
(2.) THE plaintiff -appellant filed Title Suit No.82/78 for declaration of 1/12th Share in Schedule E lands and also for a decree of partition and also for a declaration that the three sale deeds dated 6.5.1975 executed by Smt. Rukni in favour of the concerned defendants are forged and fraudulent transaction and are null and void. The brief facts relevant for this appeal are that one Churo Mahto had two sons - Chaman Mahto and Raman Mahto. The plaintiff's case is that both the sons of Churo Mahto jointly inherited the properties left by Churo Mahto and remained in joint possession. Chaman Mahto left behind his only son Bhola Mahto who died before the cadastral survey leaving behind his wife Most. Fulia. Plaintiff's further case is that Most. Fulia was married previously to one Khedan Mahto and through him she has a daughter Most. Rukni. After the death of previous husband Khedan Mahto, Most. Fulia married with Bhola Mahto and started leaving with Bhola Mahto along with his daughter Rukni. Plaintiff's further case is that Chaman Mahto and Raman Mahto remained joint with Bhola Mahto and in the state of jointness Bhola Mahto remained Karta of the family and acquired lands out of the joint family fund. Then Bhola Mahto died. Since sons of Raman Mahto were minor and as such Most. Fulia being the eldest member in the family, managed all the joint family property. It is alleged by the plaintiff that Most. Fulia did not inherit any property but get her name mutated in the revenue record. According to the plaintiff, Most. Fulia remained joint with the heirs of Raman Mahto and for all practical purposes the suit property remained joint to the exclusion of Most. Fulia. When the eldest son of Raman Mahto namely Fakir Mahto became major, Most Fulia alleged to have married with Fakir Mahto in Sagai form. The plaintiff, therefore, pleaded that neither Most. Fulia nor her daughter Rukni ever acquired right, title and interest over the suit property and, therefore, any transfer made by Most. Rukni or her sisters are null and void.
(3.) THE contesting defendant Nos.4 to 6, on the other hand, filed a written statement and took the stand that the suit is barred by principle of waiver, estoppel and adverse possession and is also not maintainable under the provisions of Order II Rule 2, C.P.C. The defendants' case is that on the death of Churo Mahto, his two sons Chaman Mahto and Raman Mahto never joinly inherited the estate left by Churo Mahto in respect of land of Khata Nos.23 and 22 of village Baheri. The defendants' case is that during the life time of Churo Mahto, he divided all the lands between his two sons several years before the survey settlement of the year 1914 to 1916. Raman Mahto also died before the cadastral survey leaving behind his three sons, namely Fakir Mahto, Gandouri Mahto and Gango Mahto. Chaman Mahto died before the survey settlement leaving behind his only son Bhola Mahto. Bhola Mahto died leaving behind Most. Fulia and her two daughters - Rukni and Koili, who inherited the property left by Chaman Mahto. The defendants denied that the lands of village Baheri were ever recorded in the name of three sons of Raman Mahto and they had ever possessed any part of it. Defendants' case is that Most. Fulia has 10/5/2014 Page 21 Birendra Kumar Singh Versus State Of Jharkhand no previous marriage with Khedan Mahto and Most. Rukni was not the daughter through his alleged previous husband Khedan Mahto. Rather Bhola Mahto has two daughters - Rukni and Koili through his wife Fulia.;