BIRCHAND RAUT AND OTHERS Vs. BABU RAM RAUT AND OTHERS

JUDGEMENT

(1.) This second appeal is by the defendants against a judgment of affirmance. The plaintiffs brought a suit for partition and claimed 1/5th share in the suit properties described in Schedule 2 of the plaint. One Sheoraj Raut had two sons, Raghunandan and Chhotan. Chhotan died issueless and Raghunandan became the sole owner of the entire ancestral property. Raghunandan had two wives. By the first wife, he had a son Anandi, and by the second wife, he had four sons, namely, Roshan, Birch and, Udit and Munshi (Roshan being original defendant No. 1, Birchand being defendant No. 2 and Munshi being defendant No. 3). Plaintiffs are the sons of Anandi (son of Raghunandan from the first wife).

(2.) The plaintiffs' case was that their father Anandi had separated from his other four step -brothers about thirty years ago after the death of their father Raghunandan, and in that separation, the entire movables were partitioned, and out of the immovable properties, a part thereof came in separate cultivating possession of the parties according to convenience sake, but most part of the immovable properties remained in joint possession. According to the plaintiffs, no partition by metes and bounds had taken place. Further case of the plaintiffs was that Anandi (father of the plaintiffs) died leaving behind his two minor sons, that is, the plaintiffs, and after attaining majority, the plaintiffs requested the defendants to partition the properties, but of no avail. Further case of the plaintiffs was that they have 6 bighas 14 kathas 5 dhurs tenancy land, which included the ancestral land and the land acquired by the income of the joint family property. The plaintiffs also alleged that some lands were sold by the parties to meet their necessary expenditure and hence the lands sold by the parties should be adjusted in the share of the transferors. The plaintiffs alleged that as for some time distrust prevailed amongst the parties, hence it necessitated institution of the suit for partition of the entire immovable properties by metes and bounds, to which the defendants were not agreed.

(3.) The defendants contested the suit. Their defence was that Anandi had separated from his father Raghunandan and the four step -brothers during the lifetime of his father about 59 years ago, and at that very moment there was a complete partition of the entire joint family properties. According to the defendants, there was also some ancestral property in village Babuain (in Nepal) where Anandi had his Nanihal and hence when the aforesaid partition took place, Anandi liked to have the lands of Babuain in his share and, accordingly, the lands of Mouza Babuain were allotted to his share. According to the defendants, the lands of village Semra Bhola Tola fell to the share of Raghunandan and his remaining four sons. According to the defendants, Anandi settled in village Babuain and lived there for six or seven years. Within these six or seven years, Anandi sold away his entire property of village Babuain and returned back to his original village Semra Tola Bhola. According to the defendants, Anandi having no property, his father Raghunandan, out of mercy and pity, gave him 6 Kathas of land out of his own share, and besides this, he also purchased 1 Bigha 1 Katha in the name of Anandi and gave it to him for his maintenance. The defendants further alleged that Anandi and the plaintiffs disposed of these lands which were given by Raghunandan. The defendants alleged that 2 Kathas out of these lands was sold by the plaintiffs to defendant No. 7 also, 14 Kathas was sold to one Bishundayal Pandey and 4 Kathas to one Bhanu Rout. The defendants further alleged that Anandi during his lifetime had already sold his 7 Kathas of land to Roshan (defendant No. 7), and in this way the entire landed property which was given by the father Raghunandan to his son Anandi for his maintenance had been disposed of.