VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the plaintiffs -appellant Nos. 1 and 2 has been directed against the impugned Judgment and decree dated 12.12.1989 and 21.12,1989 respectively passed in Title Appeal No. 2 of 1983 by Shri Arun Prabhat Sinha, 1st Subordinate, Gumla whereby and whereunder the said appeal was allowed setting aside the judgment and decree of learned Munsif, Gumla passed in Tide Suit No. 22 of 1979 and the suit of the plaintiffs -appellant was dismissed.
(2.) PLAINTIFFS -appellant No. 1 and 2 along with plaintiff -respondent No. 4 Sushil Lakra had filed Title Suit No, 22 of 1979 for a declaration that decree passed in Partition Suit No. 3 of 1965 for carving out a separate takhata of one -third share of defendant No. 1 is illegal and void and the said decree is not binding upon the plaintiffs and also for a decree for partition of the suit land detailed in the schedule of the plaint by carving out a separate takhata of their one -third share by appointment of a Pleader Commissioner. The case of the plaintiffs, in brief, is that the suit land described in the schedule at the foot of the plaint is the raiyati land of the parties in their possession Jointly recorded in the survey records of right in the name of Johan Oraon, Paulus Oraon and Charwa Oraon and their separate possession has been noted in the remarks column of the survey records of right but some of the suit plots were recorded in their joint possession but after the survey they also mutually began to cultivate these lands separately. Plaintiff Nos. 1. 2 and 3 are the sons of Johan Oraon. Defendant No. 1 is the son of Paulus Oraon and defendant Nos. 2 and 3 are the sons of Charwa Oraon. it is alleged that paulus Oraon, the father of defendant No. 1 at the instigation of some illdesigned persons filed Partition Suit No. 3 of 1965 for partition of the suit land and Johan Oraon on service of notice appeared in the said Partition Suit No. 3 of 1965 and filed his written statement making out a case that there had already been a previous partition of the suit properties between the parties but during the pendency of the said suit at the intervention of the well -wishers of the parties a panchayaty was held in the month of March 1966 and considering the litigation between the parties not beneficial for them as they had already separated and were in separate possession, Paulus Oraon aforesaid agreed to withdraw the said suit and believing him Johan Oraon thereafter did not appear in the said suit under the impression that the said partition suit must have been withdrawn by Paulus Oraon and further Paulus Oraon had also informed Johan Oraon that he will withdraw the said suit and thereafter the parties to the said suit continued to possess the suit land as usual and till today they are accordingly in possession over the suit land. The further case of the plaintiffs is that in the month of October 1978 in the course of survey settlement operation, plaintiffs came to know from defendant No. 1 that Partition Suit No. 3 of 1965 was decreed ex parte and final decree has already been prepared and he claimed the land as per the allotment made in the takhata of the share of his father. it is alleged that the decree in the said Partition Suit No. 3 of 1965 has been obtained by practicing fraud upon Johan Oraon, the father of the plaintiffs and keeping Charwa Oraon, the father of defendant Nos. 2 and 3 in dark. it is further alleged that no notice of the alleged final decree was ever sent to or served upon Johan Oraon through Court which is mandator and on enquiry the plaintiffs learnt that the Amin had also never sent any information to Johan Oraon in respect of preparation of the final decree in collusion with Paulus Oraon and the final decree has been prepared in Partition Suit No. 3 of 1965 by suppressing material processes and there are several illegalities committed in the report of the Amin which is the part of the final decree for the benefit of Paulus Oraon and thus the decree in Partition Suit No, 3 of 1965 is null and void and not binding upon the plaintiffs as it also purported to separate only the interest, in the suit property of Paulus Oraon. It is alleged that parties are still joint in respect of the suit property, however, they cultivate the suit land separately for the sake of convenience and plaintiffs had one -third share therein and one -third share belongs to defendant No. 1 and the remaining one -third belongs jointly to defendant No. 2 and 3.
(3.) THE case of defendant No, 1 Nicodin Lakra, inter alia is that the suit land was recorded jointly in the survey records of right and there was no metes and bounds partition between the parties to the suit and they are separately cultivating the suit land for the sake of convenience and his father Paulus Oraon filed Partition Suit No. 3 of 1965 for partition of the suit land and the said suit has been decided in full know of all concerned including the plaintiffs and one -third share of Paulus Oraon stands demarcated and separated as per the decree in Partition Suit No. 3 of 1965 and DP was also affected vide Execution Case No. 2 of 1973 and this defendant is in possession thereon accordingly and the said decree is binding upon the parties to the said suit. It is alleged that Amin has riglitly carved out the separate takhata of Paulus Oraon after going upon the suit land and making due enquiry with the knowledge of the parties and there is no illegality therein and the decree passed in Partition Suit No. 3 of 1965 is legal and valid and the same cannot be challenged in the present suit and it is barred by res judicata. It is alleged that the claim of the plaintiff of his separate takhata can be allowed only after excluding the land for which the takhata has been prepared in favour of Paulus Oraon, the father of this defendant as per the final decree in Partition Suit No. 3 of 1965 and it cannot be repartitioned including the land allotted in the takhata of Paulus Oraon aforesaid.;