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2002 DIGILAW 688 (JHR)

Bhukhli Mahatani v. Nanku Mahto

2002-06-27

GURUSHARAN SHARMA

body2002
JUDGMENT Gurusharan Sharma, J. 1. Plaintiffs are appellants. By impugned preliminary decree passed in Partition Suit filed by them their claim for partition of 1/3rd share of plaintiff No. 1 and 1/3rd share of plaintiffs 2 and 3 in the lands of Khata Nos. 19 and 102 of Mouza Baghdaha, detailed in Item Nos. 1 and 2 of the Schedule of the land shown at the foot of the plaint, has been reduced to the extent that in the lands of Khata No. 19 in Item No. 2 of the Schedule, Plaintiff No. 1 is entitled to 1/9th share and plaintiffs 2 and 3 are jointly entitled to 1/9th share therein, whereas in the lands of Khata No. 102 plaintiff No. 1 is entitled to 2/9th and plaintiffs 2 and 3 together also to the extent of 2/9th share. 2. One Tulsi Mahto of village Baghdaha within Dhanbad district left behind three sons, Jairam Mahto, Bandhu Mahto and Babula Mahto, Jairam Mahto died leaving behind his widow and two daughters. Bandhu Mahto left behind three sons, namely. Kishun Mahto, Pusha Mahto and Rupu Mahto and Babulal left behind his widow Fudni, a son Lalu and daughter Domni Bhukhli Mahatain widow of Pusu Mahto along with Kulu Mahatain widow of Rupu Mahto, and Hari Prasad Mahto son of Rupu Mahto filed Partition Suit wherein Jasoda widow of Kishun and his son Dukhan Mahto, Kamal Mahto and Tekhlal Mahto and his daughter Kunti Mahatain were impleaded as defendants 1 to 5. 3. Purchasers from widow of Jairam Mahto in respect of part of the suit properties were impleaded as defendants 6 to 13. 4. According to the plaintiffs, Sahodaria alias Bhusia was widow of Jairam Mahto and she along with her two daughters Bilasi and Kuari Mahatain were impleaded as defendants 4 to 16 and two daughters of Rupu, namely Meghni and Dalwa were made defendants 17 and 18. 5. Plaintiffs case was that lands of Khata Nos. 19 and 102 stood jointly recorded in the names of Jairam, Pushu, Rupu, Kishun and Lalu Mahto, son of Babulal Mahto, wherein Jairam had one share, Kishun, Pushu and Rupu had one share and Lalu had one share. 5. Plaintiffs case was that lands of Khata Nos. 19 and 102 stood jointly recorded in the names of Jairam, Pushu, Rupu, Kishun and Lalu Mahto, son of Babulal Mahto, wherein Jairam had one share, Kishun, Pushu and Rupu had one share and Lalu had one share. After death of Jairam and Lalu, Fudni and Domni filed Title (Partition) Suit No. 7 of 1994 against Kushun, Pushu, Rupu and Sahodaria, which was contested by Kushun, Pushu, Rupu and ultimately, it was disposed of in terms of compromise. However, in the said compromise Sahodaria did not participate, but the said Partition Suit was disposed of ex parte against her interests of the aforesaid compromise. By virtue of the said compromise entire lands of Khata No. 102 were given to Kishun, Pushu and Rupu and 1/3rd of Khata No. 19 lands were allotted to Fudni and Domni and 2/3rd thereof was again given to Kishun, Pushu and Rupu. 6. It appears that Bhusia claiming to be the widow of plaintiff preferred 1/3rd share in the lands of Khata No. 102 to Dukhan one of the sons of Kishun. Plaintiffs ignoring the aforesaid transfer of lands of Khata No. 102 by Bhusia in favour of Dukhan, defendant No. 2 made a prayer in the present suit for partition of their share on the basis of the aforesaid compromise decree passed in Title (Partition) Suit No. 7 of 1944. According to them Sahodaria, who was party in the aforesaid suit and Bhusia were the same person and as such the aforesaid compromise decree in Title (Partition) Suit No. 7 of 1944 was binding on her and she had no authority to make transfer in favour of the said defendant. 7. A controversy arose in the suit whether Jairam Mahto had two wives, Sahodaria and Bhusia or as claimed by plaintiffs, Bhusia was alias name of Sahodaria and Jairam had only one wife. Both parties led oral and documentary evidence in this regard. On behalf of plaintiffs, two Chow-kidari receipts (Exhibits 2 and 2/A) of the year 1979-80 issued in the name of Sahodaria was brought on record to prove that Sahodaria was widow of Jairam and she is still alive and has been impleaded in the suit as defendant No. 14. Both parties led oral and documentary evidence in this regard. On behalf of plaintiffs, two Chow-kidari receipts (Exhibits 2 and 2/A) of the year 1979-80 issued in the name of Sahodaria was brought on record to prove that Sahodaria was widow of Jairam and she is still alive and has been impleaded in the suit as defendant No. 14. In this regard, PWs 5, 6 and 7 also deposed that Bhusia was the alias name of Sahodaria and it was not correct to say that after death of Sahodaria Jairam had married another lady, namely, Bhusia and thereafter he died in the year 1938. 8. Perusal of oral testimony of those witnesses show that they had not claimed special means of knowledge about the fact that Jairam had only one wife and a lady named Bhusia was not the wife of Jairam, rather she was the same lady. Hence, in my view, trial Court rightly did not believe their story. 9. On the other hand, contesting defendants including Bhusia defendant No. 14 adduced oral and documentary evidence in this regard. Bhusia herself was examined as D.W. 22. According to her Sahodaria was the first wife of Jairam and he got a daughter Bilasi from her. After death of his first wife Sahodaria, Jairam married her in Sagai form and a daughter Kuari was born out of their wed- lock. Another witness Pagu Mahto (PW 11) a resident of village Dharnobandh, which was Naihar (fathers place) of Sahodaria deposed to the effect that he was a neighbour of Kasi, father of Sahodaria. Sahodaria was married with Jairam of village Baghdeha and had died after giving birth to a daughter. Said witness has further deposed that Pusu Mahto full brother and Sahodaria died 25/30 years ago. 10. Sonaram Mahto of village Bariktanr Tola Bundu Tanr (Naihar of Bhusia) was examined as D.W. 14. He deposed that Bhusia is daughter of Chaita Mahto of his village and she was firstly married with Bora Mahto of village Sunaria and after death of her husband Bora Mahto, she was married in Sagai form with Jairam Mahto. She gave birth to a daughter. According to him Bhusia was 10 years older to him and she had no alias name. 11. She gave birth to a daughter. According to him Bhusia was 10 years older to him and she had no alias name. 11. No doubt, defendant No. 3 who examined himself as D.W. 19 stated in his evidence that Bhusia is the altos name of Sahodaria, but he admitted in paragraph 10 of his cross-examination that at the time of filing of the present suit there was cordial relationship between him and his two brothers and there was no difference and in paragraph 12 he admitted that he was not aware of the fact as to how 1944 Partition Suit was disposed of in terms of compromise and Bhusia is still alive and he has no difference with her. He was aware of transfer of portion of suit land made by Bhusia in favour of defendant No. 2 and others. It was suggested to him that he was in league with the plaintiffs for his interest, which was denied by him. 12. Plaintiffs or their supporting defendant No. 3 failed to produce any documentary evidence to show that any where Sahodaria and alias name Bhusia. For the first time, the plaint of the present suit Bhusia was described as alias name of Sahodaria. 13. In the aforesaid circumstances, I find that trial Court rightly held that Bhusia was not the alias name of Sahodaria and Bhusia was the second wife of Jairam. It was, therefore, established that Bhusia was not made party in 1944 suit and, therefore without going into the question as to whether Sahodaria first wife of Jairam was made party therein was alive or not at the time of filing of the said suit, the decree passed in the said suit was not binding on Bhusia under Section 14 of the Act. 14. It cannot be disputed that widow of Jairam, after coming into force of Hindu Succession Act, 1956, got absolute right and ownership over the estate left by her husband and was entitled to 1/3rd share in the lands of Khata Nos. 19 and 102. 15. In the aforesaid circumstance, trial Court rightly reduced plaintiff share to the extent indicated above and passed the impugned judgment and I find no reason to interfere with the same. 16. In the result, this appeal is dismissed, but without costs.