M.Y.EQBAL, J. - (1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment dated 17.12.1998 passed by learned Single Judge in First Appeal No. 31 of 1988(R), whereby the aforesaid appeal has been allowed and the judgment and decree passed by Sub -Judge, Palamau at Daltonganj in Partition Suit No. 53 of 1984 has been set aside. Consequently, the suit was decreed.
(2.) PLAINTIFFS /respondents filed aforementioned suit for partition of one -third share in the suit land comprised within Cadastral Survey Khata no. 35 of village Pachmo and C.S. Khata no. 12 of village Pandaria. Plaintiffs' case, inter alia, is that Lodi Ahir was common ancestor of the parties. Lodi Ahir had five sons namely, Bandhu, Mewa, Gopi, Dallu and Fulchand. Plaintiffs are the descendants of Fulchand, whereas defendants are descendants of Bandhu and Mewa. According to the plaintiffs, Lodi Ahir lived in village Pachmo and he owned and possessed lands in village Pachmo, Pandaria and other villages in the district of Palamau at Daltonganj. Before the last Cadastral Survey, Gopi and Dallu separated from Lodh and were allotted lands in other village and whereafter they settled there. Dallu died issueless. Bandhu and Mewa remained joint with their father Lodi and assisted him in cultivation of the suit land. Plaintiffs' further case is that Lodi died in 1913 -14 before the commencement of Cadastral Survey operation leaving behind his two major sons, namely, Bandhu and Mewa and one minor son Fulchand. After his death Bandhu became the karta of the family. In the C.S. operation, Bandhu and Mewa were recorded raiyats in respect of the suit land. Bandhu, Mewa and Fulchand died one after another while living jointly. After their death, their sons jointly owned and possessed the ancestral land including the suit land. It is alleged by the plaintiffs that they are living in the ancestral house in village Pachmo. Defendant nos. 1 to 5 in the Revisional Survey Operation became hostile to the plaintiffs and even denied their right and ownership over the suit lands. In spite of the demands made by the plaintiffs, the defendants did not amicably partition the suit lands. Hence, the necessity of the suit for partition of the one -third share of the plaintiffs in the suit properties. Defendants/appellants contested the suit by filing joint written statement contending, inter alia, that their ancestor Lodi had no landed property. There was partition of movable properties between Lodi and his five sons. After partition Mewa and Bandhu remained joint and carried on cattle business and from their own fund they acquired the suit properties by taking settlement from Namudag Estate on payment of Nazrana in the year 1911 -12. Their names were mutated in the Revenue Records and were recorded in the last Cadastral Survey in the year 1917 -19 and since then they are in exclusive possession of the suit properties. Defendants' further case was that Lodi and Fulchand lived together in Bhandar of Namudag at village Pandaria. Lodi dies in the year 1934. Defendants' further case was that Fulchand was allowed by Bandhu and Mewa on compassionate ground to construct a house over 3 decimals of land in plot no. 314 at village Pachmo on the undertaking that he would vacate it on constructing a house on the land to be purchased by him. But neither he nor his son Padarath vacated the land, instead Padarath fraudulently obtained a Parcha for it under the Bihar Privileged Persons Homestead Tenancy Act. Defendants' further case was that plaintiff nos. 2 and (sic) filed petition for mutation of their names in respect of the disputed lands before the Circle Officer, Hariharganj in Mutation Case No. 73 of 1980 -81, which was rejected on 4.7.1980 after due enquiry and it has become final since the plaintiffs did not prefer any appeal or revision before any authority against it.
(3.) THE Trial court framed the following issues for consideration: 1) Is the suit maintainable as framed? 2) Have the plaintiffs any cause of action for the suit? 3) Had Lodi Ahir landed any immovable properties during his life time? 4) Is there any unity of title and possession between the parties over the suit land? 5) Is the court fee paid by the plaintiffs sufficient? 6) Are the plaintiffs entitled to seek 1/3rd share in the suit properties? 7) To what relief or reliefs are the plaintiffs entitled? ;