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2012 DIGILAW 972 (PAT)

Koshal Kishore v. Sachidanand Jha

2012-07-16

MUNGESHWAR SAHOO

body2012
MUNGESHWAR SAHOO, J.:–Both the First Appeals arise out of common judgment and decree dated 22.12.1973 passed by Sri Sheonarayan Lall Nandkeoliyar, the learned Subordinate Judge, Hajipur in Partition Suit No.23 of 1969/131 of 1973 decreeing the plaintiff’s suit in part. 2. Against part decree, the plaintiff has filed First Appeal No.208 of 1974 whereas against the other part decree, the defendant no.4 has filed First Appeal No.185 of 1974. 3. The plaintiffs-appellants of First Appeal No.208 of 1974 filed Partition Suit No.23 of 1969/131 of 1973 claiming partition of Schedule I and II property to the extent of 4/9th share. 4. The plaintiffs claimed the aforesaid relief alleging that Baldeo Jha was the father of plaintiff no.1 and defendant no.1 and husband of defendant no.4. Father was karta of the joint family which owned and possessed of a residential house and 3.82 acres of agricultural fertile lands which used to yield enough income. Out of the savings of the said property, the family purchased other properties. The plaintiff no.1 entered into service and was sending money orders to his father, Baldeo Jha. Some of the family properties were also acquired by the earnings of the plaintiff no.1. The ancestral property is mentioned in Schedule I whereas the acquired properties are mentioned in Schedule II of the plaint. Some of the properties are in the name of the different members of the family including the defendant no.4 who is mother of the plaintiff and defendant no.1 but all the properties are joint family properties. The defendant no.1 married an Assami girl and, therefore, the plaintiff separated in mess and business from defendant no.1 in March, 1959. Thereafter, the plaintiff has also acquired some properties with which the defendants have got no concern. The wife of defendant no.1 won over the defendant no.4 and Baldeo Jha. Baldeo Jha later on fell ill in 1963 and in January, 1963 itself, he lost his memory and died unconscious. There had been no partition by metes and bounds. The plaintiffs demanded partition but the defendants refused. Hence, the suit was filed. 5. The defendants filed joint contesting written statement alleging that the suit is bad for partial partition as Schedule B of the supplementary written statement was not included in the suit. The plaintiffs included many properties which are not the joint family properties. The plaintiffs demanded partition but the defendants refused. Hence, the suit was filed. 5. The defendants filed joint contesting written statement alleging that the suit is bad for partial partition as Schedule B of the supplementary written statement was not included in the suit. The plaintiffs included many properties which are not the joint family properties. The ancestral land measuring 3.82 acres was not fertile and no land was acquired out of the income of the ancestral land. According to the contesting defendants, Baldeo Jha was himself in service and he acquired the lands in his own name and in the name of plaintiff no.1 and defendant no.1 out of his own earnings. Baldeo Jha kept the lands acquired by him separately and was appropriating exclusively the usufruct of the same. The defendant no.4, Jamuna Ojhain also purchased lands out of her koshal funds in her own name which is herself acquired properties. No property was purchased out of earning of the plaintiff no.1 who entered into police service in the year 1945 and his earning was not sufficient to meet his own expenses including his wife and children. 6. The further case of the contesting defendant is that there is no unity of title and possession regarding the Schedule I and II properties rather because of misbehaviour of the plaintiff no.1 with Baldeo Jha in the year 1959, Baldeo Jha made a family arrangement with consent of plaintiffs and defendants to avoid further trouble. In October 1959, there was complete severance of status and division of properties. The plaintiff no.1 and defendant no.1 were given half share in the properties described in Schedule B and B(1) of the written statement. Baldeo Jha and his wife i.e., defendant no.4 did not take any share in the ancestral properties although, they were entitled for 1/4th share. They kept their self-acquired properties for them which are described in Schedule C and D of the written statement. According to the family arrangement, the names of the parties were mutated separately and they started paying rent. Therefore, the family arrangement was acted upon. Baldeo Jha and defendant no.4 bequeathed their self-acquired properties i.e., Schedule C and D of the written statement to the defendant no.1 by registered deed of Will dated 11.03.1963. The defendant no.1 is in possession of Schedule C of the written statement after death of Baldeo Jha. Therefore, the family arrangement was acted upon. Baldeo Jha and defendant no.4 bequeathed their self-acquired properties i.e., Schedule C and D of the written statement to the defendant no.1 by registered deed of Will dated 11.03.1963. The defendant no.1 is in possession of Schedule C of the written statement after death of Baldeo Jha. After this family arrangement, defendant no.1 also acquired many lands in the name of his wife and children. He and defendant no.4 have also sold some lands. In the recent survey, their names have been separately recorded. The illness and unconsciousness of Baldeo Jha in January, 1963 was denied. 7. On the aforesaid pleadings of the parties, the learned court below framed the following issues:– (i) Whether the plaintiffs have cause of action or right to sue? (ii) Is the suit as framed maintainable? (iii) Whether the suit is barred by principles of waiver, estoppel and acquiescence? (iv) Is the story of acquisition by Baldeo Jha and his wife correct as alleged by the defendants? (v) Was there complete severance of status and division of properties as alleged by the defendants? (vi) Can defendants rely on the alleged Will dated 04.03.1963? Is it legal and was there authority of Baldeo Jha to execute any Will? (vii) Are the plaintiffs entitled to a decree, if so, to what extent? 8. After trial, the learned court below considering the materials available on record recorded a finding that there is no paper showing complete partition in the year 1959 and disbelieved family arrangement. The trial court also recorded a finding that the ancestral land measuring 3.40 acres had no sufficient income out of which, the properties could have been acquired in the name of different persons. The trial court also recorded a finding that since after the year 1948, the acquisitions were made with the help of some contributions out of the earnings of the plaintiff no.1 and, therefore, it cannot be said that the acquisitions from the year 1948 upto the year 1959 are acquired by defendant no.4 out of her koshal funds. The trial court also found the properties standing in the name of Baldeo Jha is his self-acquired properties. 9. The trial court also found the properties standing in the name of Baldeo Jha is his self-acquired properties. 9. The defendant no.4 has filed this appeal against the finding of the trial court whereby it has been held that the acquisitions from the year 1948 to 1959 in the name of defendant no.4 are not her self-acquired properties whereas the plaintiff has filed the appeal against the rest of the finding that the properties in the name of Baldeo Jha and the properties acquired in the name of defendant no.4 prior to 1948 are their self-acquired properties. 10. Mr. Shivanandan Rai, the learned senior counsel appearing on behalf of the appellants in First Appeal No.185 of 1974(the appeal filed by defendant no.4, Smt. Jamuna Ojhain) submitted that the plaintiff’s case was that all the properties acquired in the name of this defendant no.4 and Baldeo Jha i.e., husband of defendant no.4 were the properties acquired out of the income from the joint family land. On the other hand, the defendant denied this assertion of the plaintiff. It was not the case of the plaintiff that the acquisition prior to the year 1948 in the name of defendant no.4 are her self-acquired property and the properties acquired thereafter are the joint family properties but the learned trial court made out a third case to the effect that the acquisition after 1948 are acquired out of the contributions of the plaintiff no.1 and, therefore, the acquisition in the name of defendant no.4, Jamuna Ojhain from the year 1948 to the year 1959 cannot be said to be her own acquisition by koshal funds. 11. According to the learned counsel, there is no pleading or evidence adduced by the plaintiff to show that how much he contributed for acquisition of which land in which year. Mere sending money orders are not sufficient to prove that the properties were acquired out of his contribution. The karta was the father of plaintiff no.1 and if father received some money orders from the plaintiff no.1, no presumption can be made that in fact, out of the said amount, the properties were acquired. The learned court below has not considered that prior to 1948, there were substantial landed properties standing in the name of defendant no.4 which has been held to be her self-acquired property. The learned court below has not considered that prior to 1948, there were substantial landed properties standing in the name of defendant no.4 which has been held to be her self-acquired property. In such circumstances, the trial court should have considered the income out of the said land of the defendant no.4. According to the learned counsel, about 3 bighas of land were acquired separately by defendant no.4 till 1946. If the case of the plaintiff is reliable that out of the income from the ancestral land measuring 3.82 acres all the suit properties have been acquired, then there is no basis that out of this 3 bighas land which has been held to be self-acquired property of defendant no.4, subsequently, the properties acquired in the name of defendant no.4 measuring 9 katthas 10 dhurs in the year 1949 could not have been acquired by her. So far the appeal filed by the plaintiff is concerned, the learned counsel submitted that the father of the plaintiff no.1 and defendant no.1 namely Baldeo Jha was in service since 1927 and, therefore, he was residing outside the village in connection with his service. The witnesses have deposed that the ancestral land was cultivated by the Bataidars. Therefore, there was no surplus incomes and savings. The plaintiffs have only adduced the evidence in general terms. Therefore, after considering the oral evidences of the witnesses, the trial court has recorded a finding that the income from ancestral land was not sufficient to even maintain the expenses of the family members. The properties standing in the name of Baldeo Jha are acquired in the year 1927, 1938, 1940, 1941 and 1943. The plaintiff entered into police service i.e., constable in the year 1944. Therefore, it cannot be said that he anyway contributed for acquisition of the land in the name of Baldeo Jha. In such circumstances, the learned trial court has rightly held that these properties standing in the name of Baldeo are his self-acquired properties and no interference can be made in this First Appeal. 12. The learned counsel, Mr. Pramod Mishra appearing on behalf of the plaintiffs-appellants in First Appeal No.208 of 1974 submitted that the trial court has gravely erred in holding that the ancestral land had no sufficient income and the properties were not acquired out of the income of joint family properties. 12. The learned counsel, Mr. Pramod Mishra appearing on behalf of the plaintiffs-appellants in First Appeal No.208 of 1974 submitted that the trial court has gravely erred in holding that the ancestral land had no sufficient income and the properties were not acquired out of the income of joint family properties. The plaintiffs have adduced sufficient evidences oral as well as documentary in support of the fact that since after entering into service, the plaintiff no.1 was regularly sending money orders and, therefore, the trial court should have held that the plaintiff no.1 also contributed for the acquisition of the properties in the name of Baldeo Jha and defendant no.4. The learned counsel placed in extenso the evidences of the witnesses and also the documentary evidences to show that he was sending money orders. 13. In view of the above rival contentions of the parties, the controversy between the parties is with regard to the properties which are standing in the name of defendant no.4 and her husband, Baldeo Jha. So far ancestral properties measuring 3 katthas 40 dhurs is concerned, there is no dispute. Therefore, the points arise for consideration in this appeal is as to “whether the properties standing in the name of Baldeo Jha and defendant no.4, Jamuna Ojhain are joint family properties and the parties are in joint possession thereof or not?” 14. According to the plaintiffs, as pleaded in the plaint, the joint family had 3.40 acres of land. Subsequently, area was amended to 3 acres 82 decimals. The said land was fertile and after expenses of the family, substantial amount was saved. The plaintiff no.1 was in employment and he was sending money to Baldeo Jha. Out of the said joint family income from the land and money orders of the plaintiff, other lands have been acquired in the name of joint family members including defendant no.4. This is the specific pleading of the plaintiff in paragraph 3 and 4 of the plaint. On the contrary, the defendant’s case is that Baldeo Jha was in service and out of his own income acquired some land in the name of plaintiff no.1 and the defendant no.1 and also in his own name without the aid of joint family income. He enjoyed the usufruct of the properties acquired by him exclusively. On the contrary, the defendant’s case is that Baldeo Jha was in service and out of his own income acquired some land in the name of plaintiff no.1 and the defendant no.1 and also in his own name without the aid of joint family income. He enjoyed the usufruct of the properties acquired by him exclusively. The properties acquired in the name of defendant no.4 were acquired out of her koshal fund which remained as exclusive property of defendant no.4. The plaintiff no.1 entered in the service in the year 1945 and no property was acquired out of the money sent by him as he was getting a low amount which was hardly sufficient to meet the cost of his living and living of his family members. To substantiate their respective cases, the parties have adduced oral as well as documentary evidences. 15. Admittedly, the dispute between the parties relates to the properties which are in the name of defendant no.4 and Baldeo Jha. It is also admitted fact that Baldeo Jha entered into service as peon in the year 1927. In such circumstances, it is for the plaintiff to prove that there was nucleus in the joint family. No doubt, according to the plaintiff, the joint family had 3.82 acres of land which had sufficient income and saving. It is settled law that it is for the member of the family who is claiming partition on the ground of jointness to prove that there was nucleus of the joint family and that if it is shown that the family possessed of some joint property which from its nature and relative value may have formed the nucleus from which the property in question might have been acquired and once it is shown so, the onus will shift to the other party that the same was acquired out of his self-income without the aid of joint family nucleus. Now, therefore, let us examine the witnesses examined on behalf of the parties. No doubt, the plaintiffs have examined 27 witnesses but out of them, 19 witnesses are formal witnesses i.e., the P.W.1 to 10, 13 to 18, 22 to 24. P.W. 11, 12, 20, 21 and 25 are not on the point of income and saving out of the ancestral land. On this point, 3 witnesses have only been examined i.e. P.W.19, 26 and 27. P.W. 11, 12, 20, 21 and 25 are not on the point of income and saving out of the ancestral land. On this point, 3 witnesses have only been examined i.e. P.W.19, 26 and 27. These witnesses have stated that the ancestral land of about 4 bighas is Bhith and Dhanhar lands. Tobacco, Chillis, Wheat, Moong and Paddy are being cultivated in these lands. These witnesses have given the income from the land out of the usufruct. It may be mentioned here that the acquisition in the name of Baldeo Jha are prior to 1943 ranging from 1927 whereas the witnesses have given evidences about the income on the date when they deposed before the court. The two witnesses, P.W.19 and P.W.26 have admitted in their cross-examination that they have no concern with the cultivation of the plaintiff. There is no denial to the effect that the lands were not given in Batai when Baldeo Jha was in service. P.W.27 is the plaintiff himself. 16. On the contrary, the defendants have also examined witnesses in support of their case. The most important witness D.W.11 is defendant no.4, the appellant in First Appeal No.185 of 1974. She has categorically stated that Baldeo Jha was in service and the children were minor. Therefore, the lands were being cultivated on Batai. I find no reason as to why her evidence should be discarded. D.W.12 who is president of Choukidari Tax Committee has also stated that the lands are Nakhrus land which did not yield income for the maintenance of the family and Baldeo Jha used to maintain his family by his own earning. D.W.13 is one of the agnates of the parties who has also stated the same thing. The evidence of D.W.15 is on the same line. According to this witness when Baldeo Jha retired in the year 1943, Baldeo Jha was getting Rs.175 per month. 17. In view of the oral evidences, it appears that the plaintiffs have only stated in general terms that the ancestral lands are Bhith and Dhanhar lands and there is sufficient income. On the contrary, according to the defendants, the plaintiff’s mother has been examined as D.W.11 who categorically stated that the lands were being cultivated on Batai. There is no denial to this fact. On the contrary, according to the defendants, the plaintiff’s mother has been examined as D.W.11 who categorically stated that the lands were being cultivated on Batai. There is no denial to this fact. So far the witnesses of the plaintiffs are concerned, they are deposing about the nature and income of the land on the date when they deposed. Moreover, the plaintiff’s case also is in general term. There is no explanation about what was the income and what was the expense and what was the saving. Only because there was about 4 acres of land, no presumption can be made that there was sufficient income and after expenses, there was sufficient savings particularly when the admitted position is that at the relevant time, the lands were being cultivated on Batai. The plaintiffs have not adduced evidence about what is the area of Dhanhar land and what is the area of Bhith land. On the contrary, the defendants have stated that the lands are Nakhrus land. After considering these aspects of the matter i.e., evidence of these witnesses, the learned court below recorded a finding of fact that the plaintiffs have failed to prove that there was sufficient income from the ancestral land and after expenses, there was sufficient savings out of which the lands could have been acquired by defendant no.1 in his own name. This finding of fact is based on oral evidence. There are oral evidences vs. oral evidences. The learned trial court has given his reasons for not believing the evidences of plaintiff’s witnesses. I find no reason to discard the said reasons of the trial court in view of the evidences of the defendants. 18. In the case of Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh and others, AIR 1951 Supreme Court 120 which was followed in AIR 1983 Supreme Court 114 (Madhusudan Das Vs. Smt. Narayani Bai and others), the Apex Court has held that the finding of fact recorded by the trial court after appreciation of oral evidences should not be lightly interfered with by the Appellate Court unless it is shown that a vital part of the witness has not been considered by the trial court and had the trial court considered that vital part, the finding would have been otherwise. 19. 19. In view of the above settled position of law, I find that the income from the ancestral land was not sufficient so as to acquire the properties in the name of Baldeo Jha out of the nucleus thereof. 20. Admittedly, Exhibit 8A is sale deed dated 29.04.1927 for 3 katthas 2 ½ dhurs, Exhibit i/7 is dated 18.05.1938 for 5 katthas 15 dhurs, Exhibit i/8 is dated 13.02.1940 for 1 bigha 9 katthas 5 dhurs, Exhibit i/6 is dated 17.09.1941 for 2 katthas 0 dhur and Exhibit i/5 is dated 10.05.1943 is for 4 katthas. All are in the name of Baldeo Jha. During this period, admittedly, Baldeo Jha was in service and the lands were being cultivated by Bataidars. The plaintiff no.1 entered into service only in 1945 after training. We have seen above that the ancestral land had no sufficient income. The plaintiff was not in service. In such circumstances, how can it be said that these properties were acquired by Baldeo Jha in his own name out of the joint family nucleus. 21. The further case of the plaintiff is that he was sending money orders to Baldeo Jha. As stated above, this pleading of the plaintiff will not apply with respect to the properties acquired by Baldeo Jha in his own name because he himself entered into service in the year 1945. 22. In view of my above discussion, I find that the properties standing in the name of Baldeo Jha acquired by Exhibit-i series and Exhibit 8A are his self-acquired properties which were acquired without the aid of joint family nucleus. The finding of the trial court on this point is therefore, confirmed. 23. The next question is whether the properties standing in the name of defendant no.4 has been acquired out of the joint family nucleus or has been acquired by the defendant no.4 in her own name out of her own koshal funds. Exhibit i/10 is sale deed dated 04.01.1924 for 8 katthas 5 dhurs. Exhibit i/9 is dated 20.04.1938 for 4 katthas 5½ dhurs. Exhibit-i is dated 15.11.1946 and Exhibit i/1 is also dated 15.11.1946 for 1 bigha and 1 bigha 4 katthas respectively in the name of defendant no.4. Exhibit i/2 is dated 25.11.1948 for 9 katthas 4 dhurs, Exhibit i/3 is dated 23.05.1949 for 4 katthas and Exhibit i/4 is dated 07.06.1949 for 5 katthas 10 dhurs. Exhibit-i is dated 15.11.1946 and Exhibit i/1 is also dated 15.11.1946 for 1 bigha and 1 bigha 4 katthas respectively in the name of defendant no.4. Exhibit i/2 is dated 25.11.1948 for 9 katthas 4 dhurs, Exhibit i/3 is dated 23.05.1949 for 4 katthas and Exhibit i/4 is dated 07.06.1949 for 5 katthas 10 dhurs. All these sale deeds are standing in the name of defendant no.4. 24. We have seen above that the ancestral property had no sufficient income. Admittedly, the plaintiff no.1 entered into service in the year 1945 after training as police constable. There is no reliable evidence about what was the income and what was the expense and what was the saving of the plaintiff and for purchase of which land he contributed what amount. Only in general terms as stated above, it has been pleaded that the plaintiff sent money orders to Baldeo Jha. It may be mentioned here that there is no pleading or evidences either oral or documentary to the effect that he ever sent any amount in the name of defendant no.4 and out of the said amount, defendant no.4 purchased the properties in her own name. 25. From perusal of the money order coupons which are Exhibit 1 series, it appears that money orders were being sent to Baldeo Jha by the plaintiff no.1 either Rs.30, Rs.15, Rs.60, Rs.20, Rs.50, Rs.150 etc. which are after 1950. Exhibit 1 is of the year 1955 for Rs.50. Exhibit 1/A is dated 11.05.1948 for Rs.15. Exhibit 1/H is dated 01.12.1949 for Rs.60. Exhibit 1/C is dated 13.12.1949 for Rs.20. Exhibit 1/D is dated 22.06.1950 for Rs.50. The rest Exhibits are i.e. upto Exhibit 1/25. As stated above, 3 properties i.e., the properties purchased by Exhibit i/2, i/3 and i/4 are of the year 1948 and 1949 in the name of defendant no.4. The consideration amount of Exhibit i/2 is Rs.500, i/3 and i/4 is Rs.200 each. We have seen the money order coupons which according to the plaintiff sent to Baldeo Jha. There is no satisfactory explanation or evidence produced by the plaintiffs to show that which amount was used in purchasing which land by defendant no.4. The consideration amount of Exhibit i/2 is Rs.500, i/3 and i/4 is Rs.200 each. We have seen the money order coupons which according to the plaintiff sent to Baldeo Jha. There is no satisfactory explanation or evidence produced by the plaintiffs to show that which amount was used in purchasing which land by defendant no.4. It is not the case of the plaintiff that although, the plaintiff sent the money orders for purchasing particular item of land to his father, Baldeo Jha but Baldeo Jha instead of purchasing either in his name or his sons’ name, he purchased the same in the name of defendant no.4. Moreover, the money orders show either Rs.50 or Rs.60. Therefore, on the basis of these money order coupons which have been described above, it cannot be said that the properties standing in the name of defendant no.4 are not her self-acquired properties. As described above, the other properties measuring about more than 4 bighas have been purchased by defendant no.4 from the year 1924 to 1946 for consideration of Rs.37(Exhibit i/10), Rs.400(Exhibit i/9), Rs.469(Exhibit i), Rs.531(Exhibit i/1). There is no money order during this period. By these sale deeds, the defendant no.4 had already acquired about 3 bighas of land. No money order coupons have been produced to show that any money order was sent to defendant no.4. There is no case that the properties which were acquired in the name of defendant no.1 after 1948 have been acquired out of the contribution of the plaintiff. As stated above, there is also no specification as to which land was acquired out of the money order sent by the plaintiff. 26. In view of the above discussion of the case and evidences, it appears that the learned trial court has made a third case. The plaintiff’s case was that all the properties were joint. The defendant’s case is that the properties standing in their name are self-acquired property. It is not the case of any party that some properties are self-acquired and some are joint family property. 27. In the case of Bachhaj Nahar v. Nilima Mandal and others, AIR 2009 Supreme Court 1103=(2008)17 Supreme Court Cases 491, the Apex Court has held that no amount of evidence can be looked into upon a plea which was never put forward. A court cannot make out a case not pleaded by the parties. 27. In the case of Bachhaj Nahar v. Nilima Mandal and others, AIR 2009 Supreme Court 1103=(2008)17 Supreme Court Cases 491, the Apex Court has held that no amount of evidence can be looked into upon a plea which was never put forward. A court cannot make out a case not pleaded by the parties. The court should confine its decision to the question raised in pleading. 28. In view of the above settled proposition of law, the learned trial court could not have made a third case to the effect that the acquisition from the year 1948 cannot be said to be the self-acquired property of defendant no.4. It appears that the trial court recorded a finding that for purchasing land in the name of defendant no.4 by Exhibit i/3 and i/4, Baldeo Jha and defendant no.1 arranged money. It is not the case of the plaintiff. Therefore, this presumption or evidence without there being any pleading could not have been looked into. Moreover, it is not the case of the plaintiff that either Baldeo Jha or defendant no.1 arranged the money and purchased the property in the name of defendant no.4. 29. In view of my above discussion, I find that the learned court below has wrongly recorded a finding that the properties standing in the name of defendant no.4 acquired after 1948 are not her self-acquired properties. Therefore, the finding of the trial court on this question is reversed. 30. In view of the above findings, now the fact is that the properties standing in the name of Baldeo Jha and defendant no.4 are their self-acquired properties. The plaintiffs failed to prove that the said properties are acquired out of joint family fund or that out of the money contributed by him. 31. No other point has been raised before this court by the parties. The other evidences which have been adduced by the parties are with respect to previous partition and separate recording of the names of the parties in revenue records of rights and separate dealings of the parties with respect to some of the properties by execution of Sudhbharna deed etc. and rent receipts which are not so material for consideration of the points involved in both the appeals in view of the contentions of the parties. Therefore, those are not considered here. 32. and rent receipts which are not so material for consideration of the points involved in both the appeals in view of the contentions of the parties. Therefore, those are not considered here. 32. In view of my above findings, the First Appeal No.185 of 1974 filed by the original defendant no.4, Smt. Jamuna Ojhain(since deceased) and substituted by her legal representatives is allowed and the finding of that part of judgment and decree whereby it was recorded that the properties acquired after 1948 in the name of defendant no.4 are not her self-acquired properties is set aside. The First Appeal No.208 of 1974 filed by the plaintiffs-appellants is hereby dismissed. Thus, the plaintiff’s suit for partition with respect to the properties standing in the name of Baldeo Jha and defendant no.4, Jamuna Ojhain is hereby dismissed. The judgment and decree of the trial court is accordingly modified. No order as to cost.