VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the plaintiffs -appellant stands directed against the impugned judgment and decree dated 30.4.1988 and 7.5.1988 respectively passed in Title Appeal No. 6 of 1987 by Shri Krishna Nand Singh, Additional Judicial Commissioner, Ranchi whereby and whereunder the judgment and decree dated 31.7.1986 and 16.8.1986 passed in Partition Suit No. 53 of 1978/42 of 1985 by Additional Sub -Judge, Ranchi was affirmed and the appeal was dismissed.
(2.) THE appellants have filed the said suit for partition of the suit property detailed in Schedules "B" "C" of the plaint and also for a declaration that the order under Sec. 71 -A of the Chotanagpur Tenancy Act (hereinafter referred to as the said Act) is void, illegal and erroneous. The case of the appellants is that the parties to the suit are members of the joint Hindu family being the descendants of a common ancestor resident of village Senha Tola Bartoli, P.S. Senna, District Ranchi (now Lohardagga) and the said common ancestor was recorded in respect of the suit property in the Survey Records of Right and they are still continuing joint and there has been no partition by metes and bounds. It is also alleged that parties to the suit are Oraon by caste and they have been sufficiently Hinduised by local, caste and family customs and are governed by Mitakshara school of Hindu Law. The further case of the appellants is that the parties to the suit are in joint possession but for the sake of convenience some of the suit plots are cultivated separately by them. The further case of the appellants is that one Gajadhar Ram Pandey purchased the land of khata No. 35 in auction sale in the Execution case No. 82 (R) -9 of 1942 -43 arising out of rent suit but the said auction sale is in contravention of Sec. 47 of the said Act and if there was any settlement by Gajadhar Ram Pandey orally, both the parties to this suit had paid the consideration and both the parties were in the joint possession thereon and due to mistake original plaintiff Laxminia Oraon (who has died during the pendency of this suit) had filed a case for setting aside auction sale of khata No. 35 under Sec. 71 -A of the said Act. The further case of the appellants is that the land of Schedule "C" of the plaint is the ancestral joint family properties of the parties and at the time of Revisional Survey their ancestors were cultivating the land separately for the sake of convenience and as such separate khata has been prepared according to their cultivation though there was and is no partition by metes and bounds and the land of Schedule "C" is also not according to their respective and proportionate shares and the Revisional Survey Records of Right is incorrect and parties to this suit are cultivating the land of Schedule "B" separately for the sake of convenience.
(3.) THE case of defendants -respondent, inter alia, is that there was amicable partition between the parties before the revisional survey and they were in separate and exclusive possession of the land but no separate khata was prepared and the rent was joint and their separate possession has been recorded in the remarks column of the Survey Records of Right and similarly Bhuinharl lands belonging to the parties have also been partitioned and separate khewats were prepared for each branch. Their further case is that the then landlord Maharaja of Ratu filed a rent suit against the recorded tenants of khata No. 35 and got a decree and in execution of the said decree in Execution Case No. 82 (R) -9 of 1942 -43 one Gajadhar Ram Pandey auction purchased the entire land appertaining to khata No. 35 and delivery of possession over the land of khata No. 35 was effected in his favour and he paid rent to the then landlord for some years and thereafter, orally settled the land of khata No. 35 to the defendant -respondent Ram Pahan and thereafter said Ram Pahan and his brothers got their names mutated in the State of Bihar and are getting regular rent receipts of their rent and since then the defendants -respondent are in possession of the lands under khata No. 35 continuously and openly for more than twelve years and have acquired perfect title by adverse possession and the plaintiffs -appellant have no subsisting title or possession over the land of khata No. 35 after the said auction sale. Their, further case is that plaintiff -appellant Laxminia Oraon (since dead) had filed a case under Sec. 71 -A of the said Act for restoration of possession in her favour in respect of the entire land of khata No. 35 and the said case was dismissed and, thereafter, she has filed this suit for partition on fictitious grounds.;