VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the defendant -appellant has been preferred against the impugned judgment dated 8.5.2002 passed in Title Appeal No. 61 of 1996 by Shri R.G. Singh Nagesh, Ist Additional District Judge, Latehar whereby and whereunder the judgment and decree of the trial Court passed in Title Suit No. 2 of 1994 were set aside and the appeal was allowed and the ease was remitted to the trial Court for a fresh decision a further issues having been framed and allowing the party to adduce evidence on that issue only and after hearing the parties to decide the suit a fresh and also to appoint a Survey Knowing Pleader Commissioner for the measurement of Suit Plot No. 505.
(2.) THE plaintiffs -respondent have filed the said title suit for declaration that the plaintiffs are the raiyats of the land mentioned in Schedule -B of the plaint from which no other defendants have any concern and upon the said declaration and also of partition of the suit land exclusively allotting a separate Takhta in favour of the plaintiffs therein. The suit land appertains to Plot No. 505 of Khata No. 3 having an area of 1 -1/8 decimals out of 9 decimals situate in village - Karkat, Police Station -Latehar, District - Palamau (Now Latehar). The case of the plaintiffs, in brief, is that Plot No. 505, appertaining to Khata No. 3 having an area of 9 decimals stands recorded in the cadastral survey records of right in the name of Gandauri Mian, Jumman Mian, Wazir Mian and Immamuddin Mian, all sons of Aliyar Mian and the aforesaid recorded raiyats by amicable arrangement between themselves came in separate possession of 1/4th decimals of land along with portion of the house of Plot No. 505 and remained in possession of the same and after their death, their descendants came in possession over the respective lands and in this manner, each set of recorded raiyats got 2 -1/4 decimals of land of Plot No. 505. Defendant No. 10 Jamaluddin Mian, son of late Immamuddin Mian deceased aforesaid has orally endowed his entire share i.e. 2 -1/4 decimals of Plot No. 505 for construction of Karkat Masjid. Plaintiff No. 1 Quadir Mian and defendant No. 9 Seraj Mian are the son 'sson of Wazir Mian, the recorded tenants aforesaid. Plaintiff No. 2 Liyakat Mian is the son of plaintiff No. 1 aforesaid. Similarly, Quadir Mian also orally endowed one decimal out of 1 -1/8 decimals of his share in Plot No. 505 for the construction of the said Masjid and a Masjid was built over the same and the same is functioning under the Mutawaliship of defendant No. 2 and subsequently Jamaluddin Mian and Quadir Mian had got a deed of wakf registered in favour of Karkat Masjid through its Mutwali defendant No. 2 Asgar Mian and thus Jamaluddin Mian was left with no share in Plot No. 505 and plaintiff No. 1 was left with only 1/8 decimals share in the said land Defendant No. 9 Seraj Mian aforesaid sold his 1 -1/8 decimals of land of his share in Plot No. 505 to defendant No. 1 Saffaruddin Mian through registered sale deed of the year 1988 and thus he was left with no share in the land of Plot No. 505. In the deed of wakf dated 23.9.1992 as well as in the sale deed of 1988 aforesaid three decimals of land each were inadvertently mentioned which was definitely not the share of Jamaluddin Mian and Seraj Mian respectively Jitu Mian, defendant No. 4 Hussain Mian and defendant No. 5 Kamruddin Mian, all sans of Gandauri Mian aforesaid sold 3/4 decimals of land out of their share of 2 -1/4 decimals of Plot No. 505 in favour of defendant No. 1 Saffaruddin Mian and thus the share of defendant No. 1 Saffaruddin Mian after purchase is 1 -7/8 decimals in Plot No. 505, Plaintiff No. 2 purchased one decimal of land from defendant No. 6 Haidar Mian and defendant No. 7 Rabbani Mian out of 1 -1/8 decimals of land of their share and they were left with 1/8 decimals of land of their share in the said plot Defendant No. 8 Nabbu Mian had 1 -1/8 decimals as share in the suit plot. The further case of the plaintiff is that defendant No. 1, illegally obtained an order for mutation in his favour for an area of 2 -1/4 decimals and his subsequent Mutation Case No. 288 of 1992 -93 for mutation in his name for an area of 3/4 decimals of land which he has purchased from Jitu Mian and others, has however, been dismissed and similarly the mutation case filed by the plaintiff No. 2 for his mutation in respect of one decimal of land which he has purchased from defendant Nos. 6 and 7, has also been dismissed. It is alleged that the rejection of mutation case and the denial of title of the plaintiffs by defendant No. 1, has cast a cloud over the title of the plaintiff. Further case of the plaintiff is that the suit Plot No. 505 has not yet been partitioned by metes and bounds between the parties and there is unity of title and possession between them but the defendants being embolded by the order of the Revenue Court are threatening the plaintiffs to dispossess them from the land of their share in the suit land.
(3.) THE case of the defendant, inter alia, is that there was partition by metes and bounds between all the four recorded raiyats within ten years of the cadastral survey and Plot No. 505, on which there was a house in its entirety was allotted to the share of Wazir Mian and Immamuddin Mian only whereas contiguous Plot No. 504. having a house there on in its entirety was allotted to Gandauri Mian and Jumman Mian and they all accordingly continued in separate possession till their death and thereafter Jamaluddin Mian and Quadir Mian out of their freewill orally endowed their entire share to Karkat Masjid about 40 years ago and since then Masjid is functioning there. It is alleged that Quadir Mian and Jamaluddin Mian had constructed their houses at different places in which they are residing. It is also alleged that the rest of the portion of Plot No. 505, thus came to be exclusively owned and possessed by defendant No. 9 Seraj Mian, who had sold the same to defendant No. 1, in the year 1988 for valuable consideration and since then, this defendant is in possession thereof as an absolute owner having right, title and interest therein.;