NARENDRA NATH TIWARI, J. - (1.) THIS second appeal arises out of a partition suit. The defendant is the appellant/appellant. The case of the plaintiffs was that the suit land was recorded in the names of Ramsharan Sao, Hanhach Sao, Sohar Sao and Mohar Sao under Khata No. 28 of Village Bedani Khurd. The land of Khata No. 73 of Village Tarhanshi was recorded in the name of Ramsharan Sao, Sohar Sao and Mohar Sao, The land of Khata No. 40 of Village Tarsansi was recorded in the name of Deonath Sao. The land of Khata No. 23 of village Bishun -pur was recorded in the name of Sohar Sao and Ramshanran Sao - The land of Khata No. 14 of village Nawadih was recorded in the name of Ramsharan Sao, Hanhach Sao, Aliyar Sao and Karam Sao,
(2.) ACCORDING to the plaintiffs the said land were already partitioned among the recorded tenants Ramsharan Sao and others. The suit land fully described in the schedule of the plaint, was exclusively allotted to Ramsharan Sao in partition. Ramsharan Sao had three sons, namely. Tapasi Sao, Hargodan Sao. and Adalati Sao. Hargodan Sao died leaving behind Kedar Sao. defendant No. i before the death of Ramsharan Sao. Tapasi Sao, Adalati Sao and Kedar Sao jointly inherited the land of Ramsharan Sao. Tapasi Sao died leaving behind two sons, namely, Fagu Sao and Khelawan Sao. Adalati Sao also died leaving behind widow Jhalo Sahun and three daughters, namely. Bhikhani Sahun. Rekani Sahun and Mumeshari Sahun who are the plaintiff. As Adalati Sao had no male issue, the plaintiffs inherited his property. According to the plaintiff Kedar Saw defendant No. 1 got a deed of gift executed in his name by Jhalo Sahun in respect of suit by playing fraud This fact became known to husband of Rekani Sahun on 25.6.1987 and thereafter he obtained a copy of the gift and on the basis of said gift he came to know about fraudulent act which was obviously to deprive the daughters from their share. According to the plaintiffs the suit lands are joint among the heirs of Ramsharan. Defendant No. 1, Kedar Sao contested the suit by fling the written statement, stating inter alia, that after the death of Ramsharan Sao there had been a family arrangement and partition in the family of Tapasi Sao, Hargodan Sao and Adalati Sao. Hargodan Sao and Adalati Sao remained joint while Tapasi became separate. Kedar Sao was then a child in the lap of her mother -Bhukhani Sahun, widow of Hargodan Sao, she was of tender age. Hence she married to her Dewar Adalati Sao, and out of the said wedlock one daughter Bindhayachali was born. Adalati Sao died in the year, 1954 leaving behind two widows Jhalo Sahun and Bhukhani Sahun and four daughters. As Adalati Sao died in 1954, hence the daughter has no right to inherit the property. The property was inherited only by his two widows Jhalo Sahun and Bhukhani Sahun: Bhukhani Sahun died in the year, 1975 and Jhalo Sahun died in 1987. Jhalo Sahun transferred her entire interest in the suit property in favour of defendant No. 1 by executing deed of gift on 23.6.1987 and since then defendant No. 1 is coming in possession of the suit property. The said defendant pleaded that there was no unity of title and possession between the plaintiffs and him and so the suit for partition was not maintainable.
(3.) ON the basis of said pleadings, the trial Court framed several issues. The issue No. 3 was as to whether there was unity of title and possession between the parties and issue No. 4 was; whether the deed of gift executed by Jhalo Sahun in favour of Kedar Sao was void, illegal and not binding on the plaintiffs and whether Adalati Sao died in the year 1954 or in the year 1981.;