VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of defendants -appellant has been preferred against the impugned judgment and decree dated 14.2.1984 and 28.2.1984 passed in Title Appeal No. 32 of 1982 by Shri A.N.K.N. Sinha, District Judge, Giridih whereby and whereunder the judgment and decree dated 28.8.1982 and 4.9.1982 passed in Partition Suit No. 23 of 1977 by Sub -ordinate Judge, Giridih was set aside and the appeal was partly allowed and the suit was decreed for carving out a separate Takata of the plaintiffs -respondent to the extent of their share which is 3 annas and 8 -2/3 pie in the suit property.
(2.) THE plaintiffs respondent had filed the said suit for metes and bounds partition of the suit property of Khata No. 62 situate in village -Palmo in the district of Giridih detailed at the food of the plaint in which they had claimed 7 annas and 4 pie share. The case of the plaintiffs -respondent, in brief, is that Battu Tell was the common ancestor of the parties and he had four sons, namely Sona Teli, Gangu Tell, Bhukhan Teli and Laxman Teli and the land of Khata No. 62 stands jointly recorded in their names in the cadastral survey record of rights and they were the members of the joint Hindu family and they have also acquired the land of Khata No. 63 jointly and excavated a tank with a big Pinda and a Nala and they were in possession in defined share in respect thereof and the land of Khata No. 63 also stands ' recorded in the cadastral Survey Records of Right in their names and they also enjoyed the usufruct of the tank under Khata No. 63 separately and the land of Khata No. 63 being tank and its Pinda and Nala is impartable and is, therefore, not the subject matter of partition in this suit. Bhukhan Teli and Laxman Teli have died issueless about 50 years ago in quick succession in the state of jointness with their brothers, namely, Sona Teli and Gangu Teli who inherited them by survivorship and thereafter there had been disruption and separation of the joint family as per the mutual consent between Sona Teli and Gangu Teli and they started cultivating the suit land as per their conveyance without any partition by metes and bounds and they "also enjoyed the usufruct of the tank aforesaid separately. Sona Teli died in the year 1934 leaving behind his widow Meghani and two sons, namely, Janki Saw and Mani Saw and they came in separate possession of the land of Khata No. 62 as well as over the tank of Khata No. 63 as per their respective share. Gangu Teli also died about 35 years ago leaving behind his three sons, namely, Mukku, Bhikhan and Chirmat and they inherited the suit land separately. Mani Teli aforesaid died a year or two after the death of Gangu Teli leaving behind his widow Most Saro and a son Deo Chand Sahu, the plaintiffs in the suit and they came in possession of the suit land of Khata Nos. 62 and 63 and of Khata No. 17 jointly with Janki Sahu, Mukku Sahu aforesaid died about 30 years ago leaving behind his widow defendant No. 5 Most Jhalia and four sons, namely, defendant No. 1 Durga, defendant No. 2 Kirmat, defendant No. 3 Suraj and defendant No. 4 Lochan. Bhikhan Sahu died about 18 years ago leaving behind his three sons, namely defendant No. 6 Tej Lal, defendant No. 7 Ganpat and defendant No. 8 Tusu. Khirmat died 20 years ago leaving his only son Kanhu and he sold the land of his share by virtue of the registered sale deed in favour bf defendant Nos. 1, 7 and 10 and thereafter he left the village. Defendant No. 8 Tuso also sold his entire share in favour of defendant Nos. 1 and 7. Janki Sahu died in the year 1963 leaving behind his widow, defendant No. 11 Most Nanhki, four sons, namely, defendant No. 12 Hari Sahu, defendant No. 13 Sukar Sahu, defendant No. 14, Murli Sahu and defendant No. 17, Tarkeshwar Sahu, besides two daughters, namely, defendant No. 15, Kaili Devi and defendant No. 16, Brinda Devi and they all had succeeded Janki Teli and thereafter Most Nanhki for herself and for natural guardian of her three minor sons, namely, Sukar Sahu, Murli Sahu and Tarkeshwar Sahu along with her major son Hari Sahu executed a sale deed dated 13.7.1964, in respect of 1.85 1/2 acres of land out of Khata No. 62 and 19 3/4 decimals of land out of Khata No. 63, in favour of defendant No. 5 Most. Jhalia and the said sale deed is voidable to the extent of the interest of the minors aforesaid and also to the extent of the shares of the two daughters of Janaki Sahu aforesaid and defendant No. 13 Sukar Sahu and defendant No. 14 Murli Sahu after attaining majority in the year 1974, had repudiated the sale made on their behalf by their natural guardian, defendant No. 11. Most Nanhki, by executing sale deeds dated 6.9.1976 and 16.7.1976 respectively in favour of the plaintiffs in respect of their share in the suit property and defendant No. 16 Brinda Devi, the daughter of Janki Saw aforesaid had also executed a sale deed in respect of the suit property in favour of the plaintiffs along with Murli Sahu aforesaid and the plaintiffs have acquired valid title by virtue of sale deeds aforesaid. The further case of the plaintiffs -respondent is that one Ishwar Sahu and Jagdish Sahu got a sale deed executed in their favour on 13.7.1964 by Meghani Telian in respect of land of Khata Nos. 62 and 63 practising fraud which she subsequently cancelled by executing a registered deed of cancellation dated 15.2.1965 stating therein that Sonia Teli has died about 50 years ago and the suit property was succeeded by his two sons alone and she has not inherited her deceased -husband and again she was duped by practicising fraud and deception by defendant No. 1 Durga Sahu and he got a sale deed executed by her on 10.11.1967 in favour of his son defendant No. 9 Puran Sahu in respect of 1. 04 1/2 acres of land of Khata No. 62 and 19 3/4 acres of land of Khata No. 63 which was much in excess of her share and the said sale deed is invalid, illegal and without consideration and said Meghani Telian died about five years prior to the suit. The plaintiffs -respondent demanded metes and bounds partition of the suit land which was evaded by the defendants -appellant and hence the necessity for the suit.
(3.) THE case of the contesting defendants -appellant in their written statement, inter alia, is that Sona Teli had died in the year 1962 leaving behind his widow Most. Meghani Telian and a son Janki Saw and his other son Mani Saw had predeceased him and said Mani Saw Had committed suicide in the year 1952 when plaintiff Deo Chand Sahu was in the womb of his mother, co -plaintiff Most. Saro, who had left the village and went to reside in the parent 'shouse in village Karkatta and Mani Saw or his wife Most. Saro and his posthumous son Deo Chand Sahu have never inherited and possessed the suit land, rather, Janki Saw and his wife Most. Nanhki inherited Sona Teli on his demise. After the death of Janki Saw, his family faced with big financial crisis and had to discharge the antecedent loan and in order to reshape the cultivation of Karnatand where Janki Saw was residing severing of his relationship with village -Palmo, defendant No. 12 Hari Sahu being the Karta of her family and Most. Nanhki aforesaid validly and for consideration and for the benefit of her family sold the land of Janki Teli to defendant No. 5 Most Jhalia by executing a sale deed dated 13.7.1964 and this sale deed is not voidable and said three minor sons of Janki Saw had no right, title and interest in the suit land and as such the question of repudiation by them of the said sale deed does not arise and the said sale deed cannot be repudiated as the said sale deed is for legal necessity and for the benefit of the family to the full knowledge of defendant No. 15 Kaili Devi and defendant No. 16 Brinda Devi, the daughter of Janki Saw (deceased) and these defendants -appellant are in peaceful continuous and uninterrupted possession for more than 12 years over the suit land and has acquired valid title by adverse possession and ouster and sale deed alleged to have been executed by aforesaid Sukar Sahu, Murli Sahu and Brinda Devi in favour of the plaintiffs -respondent has no legal effect conferring any title on them in respect thereof. Their further case is that death of Sona Tell in the year 1934 and Most. Meghani not inheriting Sona Teli and Mani Saw inheriting Sona Teli on his demise are palpably false and incorrect and is falsified in view of the fact that plaintiff -respondent Deo Chand Sahu acquired the land of Khata No. 17 by virtue of the sale deed executed by Most. Meghani aforesaid. Most Meghani had sold her entire interest in respect of land of Khata Nos. 62 and 63 by executing sale deed dated 10.11.1967 in favour of the defendant Puran Saw and the said sale deed is legal, valid and for consideration and defendant Nos. 1 to 9 are coming in peaceful continuous possession over the land of Khata Nos. 62 and 63 by virtue of the said sale deed and the plaintiffs - respondent have never acquired or have any share in the suit land and the entire suit land is in possession of defendants -appellant to the exclusion and ouster of the plaintiffs -respondent and as such the story of demand of partition is false.;