VIKRAMADITYA PRASAD, J. - (1.) THE substantial question to be answered in this appeal is "Whether the learned Court of appeal below erred in law in setting aside the judgment and decree passed by the learned trial Court without taking into consideration the fact that the learned trial Court held on the basis of evidence of the witnesses that Rajia daughter of Mehru had no share (presumably on the basis of the statement of PW 4 and PW 6 that at the time of Mehru 'sdeath he had left behind his three sons)".
(2.) THE aforesaid question arose out of the fact that the plaintiff -appellant had filed a suit for partition of the Scheduled B land given in the plaint. Plaintiffs ' Genealogy is as follows : - - .........[vernacular ommited text]........... Their case was that the plaintiff 'swere related to the defendants as shown in the genealogical table. Their further case is that Mehru died leaving behind three sons Baksu, Lalu and Kalu and that Mehru died in the year 1925 (earlier it was in the pleading 1930, but it was amended to 1925) and his son Baksu died after 15 days after the death of Mahru (though in the original plaint, it was after six months but in the amendment, it was 15 days of the death of Mehru) and during his life time, Mehru had partitioned the land among three sons and had kept Schedule B land in his Khas possession. Therefore, after the death of Mehru, this property was divided among all the three brothers equally, 1/3 equal share each. The plaintiffs claim partition from the defendants in the Schedule B lands because they had not agreed to this. Kiti Rana Versus State Of Bihar (Now Jharkhand) The defendant Nos. 1 to 4 appeared and filed written statement, though admitted claims of the plaintiff 's - appellants but denied that plaintiffs had demanded any partition. The defendant No. 10, who is the contesting respondent, filed a written statement and pleaded that (i) Mehru Mian had left a daughter -Rasis Bibi and Baksu Mian had predeceased Mehru and that (ii) after the death of Maheru, the Schedule B property was inherited by Lalu Mian, Kalu Mian and Rajia Mian; consequently, Lalu got 2/5, Kalu 2/5 and Rasia 1/5 share in the Schedule B property and subsequently Rasia died leaving behind her heirs. The Genealogy as stated by the defendant No. 10 as per his W.S. would be : - - .........[vernacular ommited text]........... Further case of that defendant is that the defendant No. 8 sold the land to him and partition had already been made; consequently, the suit was bad for non -joinder of necessary parties, i.e. the heirs of Rasia and not maintainable.
(3.) THE learned trial Court framed the following issues : - - (i) Whether the suit is bad for defect of parties? (ii) Whether there is unity of possession between the parties? (iii) Whether the plaintiffs have inherited the property of deceased Mehru Mian? (iv) Whether there has been previous partition and whether defendant No. 10 had acquired title by adverse possession? (v) To what relief or reliefs the plaintiffs are entitled? On considering the evidence, the learned trial Court decreed the suit on contest and held that the plaintiff 'swere entitled to get 1/3 share in the suit land; consequently, a preliminary decree was drawn up and a direction was given for preparation of the final decree after appointment of the Pleader Commissioner.;