Pursuant to the award made by the arbitrators and the decree passed by the Court the Commissioner appointed by the Court had made a memorandum of partition setting out the shares of the three branches between whom the properties were divided.
The claim of the plaintiff that Bouku was in possession of Ranus share was denied.
There are again two documents Exts.
With certificate, Bouku and his descendants have filed this appeal.
187 of 1914 in the Court of the Subordinate Judge, Darbhanga.
The Zamindar treated the three brothers as holders of the land jointly under him but that did number alter the true relation inter se between them.
Mohan Lal relinquished his interest in the property of the joint family.
Ranu died on November 9, 1913, leaving him surviving his wife Alikrani and numberlineal descendants.
The plaintiffs claimed a half share in the properties on alleging that they were entitled to a fourth share in the right of Bouku and another fourth share of Ranu which had after the death of Ranu been entered in the name of Bouku, and Income whereof was appropriated by him.
It was found that each disputed plot of land in the villages Saurath and Pokhrauni was found divided into three parts.
Apparently these lands were found entered in the names of the parties in the revenue records.
The suit was defended by the sons of Makund and Basudeo.
Plaintiff and other members of the family have been dealing since 1914 with the joint family properties in their possession.
their personal need, yet defendant No.
On the evidence it is clear that there was severance of the joint family status and the members of the family were divided in 1914 and their respective shares were since then separately enjoyed and possessed by them thereafter and were entered in the revenue records in their names.
They companytended that the claim was barred as res judicata, in that a suit was instituted in the Civil Court in 1914 by Basudeo for partition and separate possession of his share in the properties and that the arbitrators who were appointed with the companysent of the parties made an award allowing to Makund a six anna share, to Basudeo a five anna share and to Bouku the remaining five anna share, and the property of Ranu was to remain in the possession of his widow Alikrani and on her death it was to be divided in the same proportion between Makund, Basudeo and Bouku.
Suit No.
1 Balkrishna son of Makund since the death of Makund Misser, has been keeping with him the produce of companysiderable lands held in jointness, without dividing the proportionate share of the parties, for the expenses of the joint family x x In paragraph 14 it Is averred that Ranu Misser had appointed Rangi son of Bouku as adopted son and that Ranu thereafter lived with him and on his death Rangi performed the obsequial ceremonies and entered into possession and occupation of his entire estate as legal heir and had been appropriating the produce thereof since that day.
These transactions are referable to the title arising under the award made in the suit filed by Basudeo being suit No.
The Trial Court decreed the suit holding that numberwithstanding the award of the arbitrators the suit filed by Basudeo being dismissed for number payment of Commissioners fee, the parties must be deemed relegated to the original status as members of the Joint Hindu family.
In paragraph 13 of the plaint it is averred for the sake of their companyvenience and meeting their expenses, some properties are in possession of their partiesx x Although several parties to this suit have at times, mortgaged or even sold some land in the possession in time of.
After the death of Makund and Basudeo, Bouku and his sons and grandsons instituted, in the Court of the Subordinate Judge, Darbhanga, an action for partition and separate possession of their share in the properties described in the Schedule to the plaint on the plea that the properties were of the joint ownership of the parties.
These documents clearly indicate that parts of the land which were in the possession of Basu deo and his sons were transferred by them.
For instance, Ext.
Exhibit C/2 is a sale deed executed by one Subans Pasban and others to Maneshwar Jha and in that document there was a recital stating that out of three landlords, Balkrishna Missir son of Makund was the landlord to the extent of 6 annas, Bouku Missir was to the extent of 5 annas and Jaibodh son of Basudeo to the extent of remaining 5 annas.
B of June 1929 which is a deed executed by Bouku to one Hitlal, whereby 5 kathias 10 dhurs were exchanged by Bouku out of Khasra No.
It is also number disputed by the plaintiffs that they and the other branches had sold some parts of the land as their exclusive property and had mortgaged some others and had been companylecting rents and profits In respect of those properties.
That the three members of the family Makund, Basudeo and Bouku were in possession of their separate shares in the property of the joint family is established by a mass of evidence and the admissions made by Bouku and his sons and grandsons.
The terms of the award were We have heard the parties and their witnesses.
In appeal the High Court of Patna set aside the decree passed by the Trial Court and dismissed the suit filed by the plain tiffs.
Again after this suit was instituted for partition by Bouku in 1949 a Commissioner was appointed to inspect the lands in respect of which the share was claimed by Bouku and his descendants.
The defendants submitted that pursuant to this award, the property was divided and the parties entered into separate possession of their respective shares.
Then there is a document Ext.
C 1 by Basudeo under which lands which fell to the share of Basudeo had been sold.
A series are sudbharana bonds of different dates executed by different members of the family including the plaintiff Bouku.
187 of 1914 was filed by Basudeo against Makund and Bouku and two others.
On September 14, 1914 the Subordinate Judge ordered that a preliminary decree be passed in terms of the arbitrators award and that a Commissioner be appointed to effect partition according to the award of the arbitratOrs.
C being a sale deed by Jaibodh son of Basudeo and Ext.
1643 for another land.
These averments clearly show that the three branches were in separate possession of their respective shares.
C and C 1, Ext.
One Bideyanath Misir died many years ago leaving him surviving five sons Makund, Mohan Lal, Basudeo, Ranu and Bouku.
C. Shah, J. This is an appeal filed with certificate granted by the High Court of Patna under Article 133 1 a of the Constitution, and that appears to be the only justification for the appeal to be on the file of this Court.
