JUDGEMENT
VANDANA KASREKAR,J. -
(1.)The appellant has filed the present second appeal against the judgment and decree dated 29/11/2017 passed by 2nd Additional District Judge, Sidhi in Regular Civil Appeal No.39-A/2015 whereby while partly allowing the first appeal filed by the appellant by negating the finding of the trial Court with respect to declaration of 1/4th share in favour of the plaintiff and declaring the plaintiff as owner of 1/6th share, the rest finding recorded by the trial Court has been affirmed by the first appellate Court.
(2.)According to plaint averments, respondent No.1/ plaintiff instituted a civil suit before the trial Court for declaring him as owner of 1/4 th share, partition and possession of the disputed property. It is pleaded that the disputed properties are in joint possession of parties as the same is the ancestral property and there has been no partition. Their father namely Rammanohar Mishra died on 03/06/2007 and since then the disputed lands are in the joint possession of the parties. Plaintiff is a retired employee of the Armed Forces. Despite of the fact, defendant/appellant applied for partition before the Tahsildar, Churhat under Section 178 of the Land Revenue Code only in between appellant and respondents No.2 and 3 and the plaintiff was not impleaded as party. On getting knowledge about the said proceeding, the plaintiff submitted his objection before the Tahsildar, however, in the meanwhile, as per the direction of the Tahsildar, a partition PULLI was prepared by the Patwari in which plaintiff was not shown as sharer and the disputed lands were divided only in between three share holders i.e. appellant, respondents No.2 and 3. It is also pleaded by the plaintiff that in partition proceeding before the Tahsildar, the defendant/appellant filed a registered deed of the partition dated 23/03/2007 which is said to be executed by their father late Rammanohar Mishra in which it was stated that the plaintiff had already separated from the joint Hindu Family much before i.e. during life time of their father late Rammanohar Mishra and at that time land bearing Khasra No.96 situated at Village Kaimhai was already given in the share of plaintiff. It is pleaded by the plaintiff that land bearing Khasra No.96 is his self-acquired property and, hence, no question of giving this land in the share of plaintiff arises. It is further pleaded that the said partition deed filed by the appellant/defendant before the Tahsildar is a forged document because late Rammanohar Mishra was illiterate person and used to sign but partition deed dated 23/03/2007 bears the thumb impressing of late Rammanohar Mishra. Under these premises, the appellant/plaintiff filed the present civil suit before the trial Court.
(3.)The suit was contested by the defendants by filing joint written statement, inter-alia, pleaded that indeed land bearing Khasra No.96 area 0.043 hectare was gifted by their maternal grand-mother on 21/06/1957 on the occasion of Vrathbandh ceremony of appellant and respondents No.1 to 3 and after the gift the said land was blended in the stalk of joint Hindu Family consisting appellant and they are commonly enjoyed as such. It is also contended that in the year 1984, plaintiff wished to get separate from the family which was considered by their father and total area of Khasra No.96 was given to him in his share. It was also pleaded by the defendants that after being separated by plaintiff, all other brothers i.e. appellant and respondents No.2 and 3 remained in joint Hindu Family with their father and after the death of their father Rammanohar Mishra, same was devolved to appellant, respondents No.2 and 3, thus, the plaintiff cannot claim any share of the suit lands. It was also pleaded in the written statement that the suit was not properly valued. In these premises, the defendants prayed for dismissal of the suit.
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