Arendra Nath Tiwari, J. - (1.) This appeal is by the plaintiff-appellant-appellant against the Judgment and decree of affirmance passed by the Additional District Judge, Fast Track Court, Latehar in Partition Appeal No. 20 of 2003 upholding the judgment and decree dated 23.9.2003 passed by learned Sub-Judge II, Latehar.
(2.) The plaintiffs filed the suit for partition of the suit land described in Schedule 'A' of the plaint. The plaintiffs case is that the plaintiffs and defendants jointly acquired the suit land, measuring 32 decimals of land of Khata No. 8 of Village Latehar by virtue of a registered deed. On measurement, the suit premises was found only 31 decimals. The said property was acquired from a partnership firm namely D.S. Enterprises on 25th of February, 1984. After the said acquisition, the plaintiffs and defendants jointly came in possession of the said land. The plaintiffs alleged that in their absence the neighbour Shanwarmal Seth encroached upon 1 decimal of land and thereafter the area of the suit land became short by 1 decimal, i.e., 31 decimal. In course of time, the family members of both the plaintiffs and defendants increased and parties were feeling difficulties in peaceful enjoyment of the said property and therefore, they requested for amicable partition, but the defendants denied and created trouble which led to a proceeding under . The plaintiffs claimed unity of title and possession between the parties in respect of the suit land.
(3.) The defendants-respondents contested the suit. In their written statement it was, inter alia, stated that the plaintiffs themselves transferred 1 decimal land to Shanwarmal Seth and it is false to state that said Shanwarmal Seth has encroached upon 1 decimal. The entire suit property measuring 32 decimal was orally partitioned by metes and bounds between the plaintiffs and the defendants and the western portion of the suit land was allotted to the defendants and the eastern portion was allotted to the plaintiffs and both the parties have been in separate possession of the land of their respective shares. The defendants, subsequently, constructed four shops, one guest room, sepite latrine and raised other construction and also took electricity and telephone connection and spent about Rs. 3 lakh and thereafter the dispute is maliciously raised by the plaintiffs. It is stated that the partition took place in the year 1986 and am memorandum of partition "Yaddasth" has also been prepared on 17.6.1990 as a record of the same for future reference and use. The same was signed by the plaintiff No. 2 representing all the plaintiffs and the defendant No. 2 representing all the defendants and on the basis of the said allotment, the parties have been enjoying their respective area of land and there is no unity of title and possession between the parties.;