N.N.TIWARI, J. - (1.) THIS is the plaintiffs ' second appeal against the judgment and decree of affirmance. The plaintiff -appellant had filed the suit seeking a declaration that the lands described in Schedule 'A ' of the plaint belongs to the plaintiffs and that defendants 1 to 4 have no right, title and interest over the same and that the preliminary decree dated 29.1.1951 passed in Partition Suit No. 17 of 1949 which was affirmed upto the High Court and the final decree followed thereafter are all vitiated by fraud not binding on the plaintiffs and defendants 4 to 11 and the same are liable to be set aside. The plaintiffs had also prayed for a decree of permanent injunction and appointment of receiver and for confirmation of possession over Schedule 'A ' properties. The plaintiffs ' case is that the land appertaining to Khata Nos. 23, 1/23 and 1/78 which were described in Schedule 'A ' of the plaint were acquired by Chintu Mahto by virtue of a Hukumanama. Chintu had acquired the said land in the state of jointness with his brother Jhagru and both the brothers had spent money in reclaiming the land. At the time of the said settlement, Chintu and Jhagru were separate in all respects from Ram Charan Mahto. At the time of survey operation, only Jhagru was alive but was too old and Chintu was already dead, the two sons of Chintu, namely Chhotu and Luddu were minors. Taking advantage of the said situation, Ram Charan who was a hired worker in the house of Chintu and Jhagru got his name recorded in survey record showing an interest to the extent of 1/3rd of the land of Khata No. 23. However, he never asserted or claimed any right, title or interest over the suit land and Jhagru and two minors sons of Chintu continued in peaceful possession of the said Schedule 'A ' land. They had no knowledge about the said wrong entry in the survey record of right in the name of Ram Charan. Ram Charan 'sson Roy Mohan also never claimed the land during his life time. Before his death, Roy Mohan was bed ridden for about three years and he was looked after by the sons of Chintu and Jhagru. They also looked after and maintained Roy Mohan 'swidow Lala Kumari. Lala Kumari subsequently married to one Ram Gati Mahto. Subsequently, the respondent No. 1 was born out of the said relationship. Lala Kumari then filed Partition Suit No. 17 of 1949 seeking partition of half share of Schedule 'A ' property claiming jointness with the plaintiffs family. Relevant facts were deliberately suppressed. The suit was ultimately decreed. The said decree was challenged in the Patna High Court, but the appeal was abated. The plaintiff -appellant concluded that the decree in the said Partition Suit No. 17 of 1949 was obtained by fraud and in collusion of the defendants of that suit.
(2.) THE defendants -respondents -respondents 1 to 4 contested the suit, stating, inter alia, that the suit was barred by res judicata in view of the earlier judgments passed in Partition Suit No. 17 of 1949 and in the appeal arising out of the same. The defendants denied all the allegations made against them in the plaint and also disputed and denied the genealogy given in the plaint. It was stated that the said Schedule 'A ' property was not acquired by Chintu, but the same was jointly acquired by all the co -sharers and all along they were in joint possession. It was further stated that in the said Partition Suit, Lala Kumari got only 1/3rd share whereas she was entitled to 1/2 share. It was pleaded that Ram Charan was in possession of half of the land along with Jhagru and Chintu. Defendants 10, 12, 13 (a) and 13 (c) supported the claims of the plaintiff.
(3.) THE trial Court framed several issues. Parties led their evidences in support of their respective claims. Learned Trial Court appraised and considered the evidences and materials on record and decided almost all the issues against the plaintiffs and dismissed the suit. The plaintiffs then filed Title Appeal in the Court of the District Judge, Bokaro which was subsequently transferred to the Court of the 5th Additional District Judge, Bermo at Tenughat. By the impugned judgment and decree, the learned 5th Additional District Judge, after thorough consideration and discussion of all the evidences on record, upheld the findings of the learned Trial Court. It has been held that the plaintiffs failed to prove the allegations of fraud and collusion in getting the decree in Partition Suit No. 17 of 1949 and First Appeal No. 158 of 1951. Learned Lower Appellate Court, thus, dismissed the appeal.;