M.Y.EQBAL,J. - (1.) THIS appeal at the instance of the defendants -appellants is directed against the judgment and decree dated 2.2.85 passed by the Additional District Judge, Singhbhum at Chaibasa in T.A. No. 11/82 whereby he has reversed the judgment and decree dated 27.3.82 passed by the Subordinate Judge, Chaibasa in Title Partition Suit No. 25/80 and decreed the suit.
(2.) THE plaintiffs -respondents filed the aforementioned suit for partition of the properties described in Schedule 'B' and for 'C' of the plaint and for carving out 1/4th share out of the suit property. Plaintiffs' case, inter alia, is that both parties are the defendants of one common ancestor, Bidu Mahto who had four sons, namely, Gadai Mahto, Akhu Mahto, Bhikhari Mahto and Janardan Mahto. Gadai Mahto pre deceased his father, Bidu Mahto and left behind him a son named Baidyanath Mahto who is defendant No. 1, Bhkihari Mahto is defendant No. 2 and Janardan Mahto is the plaintiff. It is alleged by the plaintiffs that Bidu Mahto died 25 years ago leaving behind three sons Gadai Mahto, Bhikhari Mahto and Janardan Mahto and a grand son, Badyanath Mahto. After his death his sons and grand son inherited the property described in Schedule B of the plaint and they have been coming in possession thereof without any partition by meets and bound. They, however, cultivated most of the lands separately according to their convenience. It is alleged that Schedule B property were recorded jointly in the name of the plaintiffs, defendant No. 1 and 2 and late Akhu Mahto the father of defendant Nos. 3, 4 and 5 under khata No. 87 of the present survey of 1961. Their separate possession has been noted in the remark column of the said khatiyan and they have been cultivating the land as per their convenience. It is further alleged that Akhu Mahto, one of the sons of Bidu Mahto died about 10 years ago leaving behind his sons. So far Schedule C property is concerned, plaintiffs' case is that those properties had been acquired by the parties jointly and they have been coming in possession of the same. The plaintiffs, accordingly, claimed -1/4th share in Schedule B and C property. The defendants appellant Nos. 1 to 3, 5 and 6 filed written statement and contested the suit. According to the defendants the suit is not maintainable and the plaintiffs have got no cause of action for the suit. Defendant's is that Bidu Mahto died 31 years ago and about three years after his death there had been amicable partition between the parties in which the lands of village Upperbera and the suit property described in Schedule B of the plaint were partitioned between them in equal shares. The exact area falling in their respective shares, however, varied according to the quality of the land allotted to each of them. It is stated that the lands allotted to them were shown in their possession in the remark column of the khatiyan. The entry showing some of the lands of khata No. 87 as joint in the present survey khatiyan is erroneous. Further case of the defendants is that as there was previous partition, the claim of the plaintiffs for fresh partition is not maintainable. It is asserted that if it is found that the lands are to be partitioned again, the same cannot be done unless the lands of khata No. 15 of Mouja Upperbera are also taken into account in giving due share to the parties. So far Schedule C property is concerned, the defendants' case is that it is recorded in the individual names of one or other defendants and the same is not joint family property.
(3.) THE trial court framed the following issues for consideration and decided all the issues in favour of the defendants and dismissed the suit. The issues are: (i) Is the suit, as framed, maintainable? (ii) Has the plaintiffs got a valid cause of action for the suit.? (iii) Is the suit barred by the law of limitation? (iv) is the suit bad for partial partition? (v) Is there any unity of title and possession between the parties over the properties described in Schedule B and C of the plaint? (vi) Is the plaintiffs entitled to a decree for partition, if so, to what extent and with respect to what property? (vii) To what relief or reliefs, if any, is the plaintiffs entitled to? ;