NARENDRA NATH TIWARI, J. - (1.) THIS is the plaintiffs' appeal against the judgment: and decree dated 28.8.93 (decree signed on 7.9.93) whereby the plaintiffs' suit for partition has been dismissed in partition Suit, No. 9/90. The plaintiffs in the said suit had prayed for partition of their13/18th share in the Schedule 'A' & 'B' properties described in the plaint. The plaintiffs' case in brief is that Bahadur Mahto the common ancestor of the oarties had acquired the lands of Khata No. 41 of village -Paplo, P.S -Nawadih, District -Giridih (now Bokaro) which was recorded in his name in cadastral survey records of rights. The land of Khata No. 41 is fully described in Schedule 'A' of the plaint. Bahadur Mahto had acquired another item of property i.e. the land of Khata No. 46 along with Bhikchuk Mahto and sons of Madari Mahato. The said land is described in Schedule 'B' of the plaint. The land of Khata No. 46 was jointly recorded in the names of the said persons in cadastral survey records of rights each with 1/3rd equal share. Bahadur Mahto died leaving behind three sons, Bodhi Mahco, Harkhu Mahto and Puran Mahto who jointly inherited the land of their father and came in joint possession thereof. In or about the year 1960 the three sons of Bahadur Mahto were separated in mess and cultivation for the sake of convenience, but without any partition by nieces and bounds. All the said sons while in occupation of separate land had sold some of the lands under their occupation. Bodihi Mahto sold some lands to Birbal Mahto, Ramdas Mahto and Rewa Mahto. Bodhi Mahto died in December 1970 leaving behind his widow Patwa Devi and three daughters Bhagia Devi, Sugina Devi and Budhani Devi who are also the defendants of the suit. After the death of Bodhi Mahto his widow and three daughters came in possession jointly with other co -sharers. Most. Patwa Devi also sold land to her daughter by sale deeds dated 18.10.78 and 10.1.81. It has been stated that the said sale deeds were kept in secret and the same never saw the light of the day. Budhani Devi (defendant No. 1) also executed several sale deeds in favour of several persons and those purchasers were also made defendants in this case. Budhani Devi sold the land of her share and that of her mother on 30.1.89. The sale deeds executed after 3.1.89 by the defendant No. 1 are void ab initio and the purchasers had not come in possession. Those sale deeds are described in Schedule 'C' of the plaint. The plaintiffs have got 13/18th share and the defendant Nos. 39 and 40 were entitled for 1/9th share in the suit property. But the defendant Nos. 2 -34 were trying to take forcible exclusive possession over the suit property and on 5.6.90 the defendants forcibly took possession over the suit land which were protested by the plaintiffs and as such it was inconvenient to remain joint and hence the suit was instituted.
(2.) THE defendants contested the suit and in their written statement stated, inter alia, that the suit is barred under the several provisions of law and the suit is barred for nonjoinder of patty and the suit has been filed without any cause of action and that there was previous partition end there was no unity of title and possession among the parties. However, it was admitted that the land of Khata No. 4l was acquirea by Bahadur Mahto and he was the common ancestor. In the land of Khata No. 46 Bahadur Mahto hud 1/3rd share. Bahadur Mahto died leaving behind his sons, Bodhi Mahto, Harkhu Mahto and Puran Mahto who inherited and possessed the lands. But the specific case of the defendants is that the joint family was separated and was in exclusive possession of the lands allotted to their respective shares since 1960 except the land of Plot No. 1334 under Khata No. 41 which was also partitioned in the year 1972. The defendants have admitted the transactions by the plaintiffs and Bodhi Mahto and after the death of Bodhi Mahto, his share was inherited by his widow and daughters. It was further stated that Patwa Devi sold the entire share of Bodhi Mahto to her daughter Budhani Devi (defendant No. 1) by two registered sale deeds with the consent of her other daughters. Budhar Devi was put in exclusive possession of the said land and she also got her name mutated and has been paying rent to the State of Bihar to the knowledge of all concerned. The defendants denied the statement that after the death of Bodhi Mahto, his heirs came in joint possession with other co -sharers. The plaintiffs also denied the execution of the sale deed in favour of the defendant No. 1 for more than her share. Two daughters o Bodhi Mahto, Bhagia and Sugani accepted money in lieu of their respective shares prior to execution of the Sale deed by Patwa Devi in favour of Budhani Devi. Although the plaintiff No. 1, the defendant Nos. 39 & 40 and the husband of the plaintiff No. 6 have purchased the lands from Budhani Devi (defendant No. 1) on the basis of the sale deeds executed by Patwa Devi in favour of Budhani Devi, they have denied that the sale deeds executed by Budhani Devi have any infirmity or the same are void. The defendants claimed that all the plots were divided prior to the execution of the sale deeds by Patwa Devi and the purchasers are in peaceful cultivating possession of the said plots. The purchasers from Budhani Devi had purchased the specific plot with specific boundary. The purchasers also themselves had purchased the partitioned land of Khata Nos. 40. 41 & 46 by metes and bounds. The sons of Harkhu Mahto also partitioned the allotted land of their father among themselves and there has been separate dealings by the members. The defendants have denied the correctness of the genealogical table and the claims made in the plaint. The defendants have contended that the lands are partitioned by metes and bounds in he year 1960 and the parties are in actual and Khas possession of their respective shares. The purchasers from the co -sharers have been in peaceful possession of their purchased lands and they have got their names mutated and they are paying rent separately. The defendants submitted that the suit for partition is thus not maintainable and is fit to be dismissed. Learned Trial Court, on the basis of the said pleadings of the parties framed the following issues: (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got any valid cause of action for the suit? (iii) Is the suit barred by the law of limitation, waiver and acquiescence? (iv) Is the suit barred under the provisions of Specific Relief Act? (v) Have the plaintiffs got unity of title and possession over the suit land? (vi) Whether the plaintiffs are entitled for a decree of partition? If so, to what extent? (vii) To what other relief or reliefs the plaintiffs are entitled to get? Both the parties led their evidences, documentary as well as oral. The plaintiffs examined as many as eight witnesses and also adduced the documentary evidences.
(3.) EXTS . 1 -1/b are the rent receipt of Khata No. 41 in the name of Bodhi Mahto and others. Certified copies of as may as 30 sale deeds have been brought on record and marked as Ext. 2 series.;