HARI SHANKAR PRASAD, J. - (1.) THIS appeal, at the instance of the appellants, is directed against the judgment and decree dated 27.6.1992 passed in Title (Partition) Suit No. 20/88, whereby and whereunder the learned Subordinate Judge IInd, Saraikella dismissed the suit filed on behalf of the plaintiffs and as such the plaintiffs are the appellants in this appeal.
(2.) FACTS giving rise to the filing of this appeal are that the common ancestor, as per case of the plaintiffs, had three sons, namely, Alsi Puran, Lahru Puran and Bir Puran. The plaintiffs and the defendants are the descendants of the common ancestor. The plaintiffs represent the branch of Lahru Puran and the defendants represent the branch of the Alsi Puran and Bir Puran and genealogical table given in the plaint will show the relationship between the parties. The common ancestor of both the parties had landed properties in three villages namely Tamari, Khokro and Puran Dih and lands of these villages were recorded in old survey Khatiyan No. 25 of village Purandih corresponding to new khala No. 23 described in Schedule B(1) of the plaint. The lands of village Khokro were recorded in old khata No. 88 corresponding to new khata No. 46 described in Schedule B(2) of the plaint. The lands of village Tamari were recorded in old khata No. 68 corresponding to new khata Nos. 88, 89 and 90 described in Schedule B(3) of the plaint and these were the suit lands. The suit lands were in joint possession of the common ancestor, namely Alsi Puran, Lahru Puran and Bir Puran and after their death their descendants remained in joint possession till before the last survey settlement. Further case of the appellants is that due to expansion of the family the descendants of all three branches of the common ancestor started possessing the ancestral lands separately according to their convenience and even they had separate messing, as a result of which separate possession was recorded in the last survey settlement against some of the plots and in other plots joint possession was recorded. There was further expansion in the family and members fell incontinence in enjoying the joint family properties and, therefore, some of them started disposing the lands out of their possession without partitioning the ancestral lands. Further case of the plaintiffs is that due to Subarnarekha Project some of the joint ancestral lands of the parties, described in Schedule C, were acquired under the Land Acquisition Proceeding and awards were mostly prepared in the names of the persons, who were found in physical possession over the lands. The plaintiffs requested the defendants to divide the compensation money into three equal shares and to handover one share to the plaintiffs and at the first instance defendants had agreed to do so but subsequent to encashment of the compensation amount defendants denied to divide the amount of compensation. The plaintiffs, on Ist Baisakh 1395 (Bengali Year) in villages Tamari, Khokro and Purandih, requested the defendants to partition the suit land according to the shares of the parties but the defendants refused to do so. Defendant Haremohan had sold plot Nos. 551, 547, 542, 543, 544, 546, 1021, 1022, 1023 and 241 measuring an area of 2.41 acres out of their possession and for that the said lands be allotted to them in partition. Defendant Sailu Puran had also sold some lands and those lands be allotted to him in final decree. Guhi Puran and Gobra Puran were sons of Sujan @ Duryodhan, who was the third son of Shivnath, Said Guhi and Gobra have left the suit villages about twenty years back and are untraced. As their whereabouts are not known, they are presumed to have died a civil death and as such they are not made parties in this suit. The suit lands have never been partitioned between the co -sharers by metes and bound as the plaintiffs jointly have l/3rd share in them and the defendants jointly have 2/3rd share in them. The Land Acquisition Officer has also been made a party in this suit. Defendant Nos. 1 to 23 have appeared in the suit and have filed a joint written statement and contested the suit. Defendants in their written statement, while challenging the maintainability of the suit on non -joinder and mis -joinder of the parties and the suit is barred under the provisions of Specific Relief Act, have admitted that parties are the descendants of Alsi, Lahru and Bir, who were full brothers, but the genealogical table given in Schedule A of the plaint, does not contain the names of all the descendants. Dhondha Puran died leaving behind a son - Haremohan and four daughters, namely, Gaubari, Manjari, Mugi and Sukri Jugal Puran also died leaving behind two sons and four daughters. Dashrath Puran also died leaving behind a daughter and five sons. Sichand Puran also died leaving behind a daughter and Ashirbad also died leaving behind a daughter. Nakul also died leaving behind a daughter Simati, who is also dead and she had left behind a son. Sikhar Puran, father of defendant Nos. 15, 16, 17 and 18 also died leaving behind three daughters. Dhokra died left behind two daughters and Rathu died left behind Rajkishore, plaintiff No. 4 and three other sons. They are necessary parties but their names have been left out in the genealogical table. It is also stated that during the life time the three bothers namely, Alsi, Lahru and Bir became separate in mess and properties and partitioned all their ancestral lands including the suit lands and this partition took place before the cadastral survey 1911 and accordingly in the cadastral survey operation, separate possession of their respective descendants was noted. It is denied that after the death of Alsi, Lahru and Bir all the descendants remained in joint possession till the last survey settlement. It is stated that in fact Alsi, Lahru and Bir were separately possessing their respective lands, which each of them got in the partition and after their death their descendants began to possess the respective shares. It is submitted that three branches were in separate possession since before the survey of 1911 and such separate possession continued and in the last survey settlement also separate possession has been noted in the khatiyan but joint possession has been noted with respect to a tank and Arh since the time of Alsi, Lahru and Bir for proper management. It is stated that descendants of three branches have separately transferred the lands, which have fallen to their respecitve branches after partition. Such sale is in the knowledge of all the descendants of three branches including plaintiffs. The defendants have further stated that separate properties of the respective branches have been acquired and award were rightly prepared and the plaintiffs have also received the compensation for their lands and as such, the plaintiffs have no concern with the award prepared in the name of the defendants. It is said that partition was already effected long before 1911 and that for plot Nos. 547, 551, 1021 and 1022 belonged to the plaintiff Haradhan Puran and Chandra Puran, who were separately possessing distinct plot, for the convenience sake they joined together to sell the plots to the defendant Haremohan be registered document and the consideration money was divided among themselves. These purchased lands and his own separate plots of Mouza Tamari have been sold by defendant Haremohan. Guhi Puran and Gobra sons of Sujan, are now settled in Assam and they used to come after long gap and due to distance they have stopped coming since last 6 -7 years and their shares of lands are under the possession of the descendants of Shivnath and as such they cannot be considered to have died a civil death. The claim of the plaintiffs that they have got l/3rd share of the suit lands is denied as the partition by metes and bounds has already been effected since long and the lands are not joint. It is also submitted that there are also lands of the common ancestor, which have not been included in this partition suit, and so the suit is also liable to the dismissed for non -inclusion of other properties.
(3.) THE suit was amended on the petition filed by the plaintiffs under Order VI Rule 17, CPC and defendant Nos. 24 to 42 have been added as party and Land Acquisition Officer has been numbered as defendant No. 43. There defendant Nos. 24 to 42 appeared in the suit and filed a joint written statement and contested the suit. They have filed written statement on 7.6.1991 and appeared to have adopted the written statement filed on behalf of the defendant Nos. 1 to 23. Defendant No. 43 has neither appeared nor filed any written statement or contested the suit.;