Jugal Kishore Singh And Ors. Vs Sheo Nandan Singh And Ors.

Lal Mohammad Ansari 21(a). Md. Mustakim Miyan 21(b). Saro Khatoon 21(c). Khadiya Khatoon @ Suggi 21(d). Khodeja Khatoon @ Badhni 22(a). Bhagi Saw 22(b). Jai Ram Saw 22(c). Upendra Saw

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Samsuddin Mian

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Samudri Devi

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Sudhir Kumar Singh

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Srimati Meena Devi

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Srimati Shanti Devi

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Srimati Abha (Ashamani) Devi

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Smt. Sarita Devi

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Jai Narain Singh

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Krishna Singh

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Girendra Singh

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Bharat Singh

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Jai Prakash Singh

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Kuldip Singh

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Saraswati Devi

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Gautam Singh

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Bibi Sabiran Khatoon

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Heyat Mian

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Sahadat Mian

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Allauddin Mian

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Inayat Mian

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Chandradeo Singh

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Khasis Mitra

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Leyakat Mian

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Reyasat Mian 47. Md. Kasim 48. Nejam Mian

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Md. Reyaz Mian

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Md. Kalim Mian

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Phiroj Khatoon

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Nasiruddin Mian

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Badruddin Mian

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Md. Jalal Ansari

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55(a). Ram Nandan Singh

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55(b). Jeevan Kumar Singh

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56(a). Keshari Kumar Das

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Most. Usha Devi 58. Dilip Singh

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Shankar Singh

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Balram Singh

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Narshing Singh

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Ashok Singh

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Piyari Devi

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Dev Narain Singh

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Alakh Devi

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Mithlesh Singh 67. Ratan Singh 68(a). Prahlad Singh 68(b). Rajendra Kumar Singh 69. Renu Devi

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Shubham Kumar

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Rinki Kumar

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Sandhya Devi

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Harsh Kumar

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Dhaneshwar Singh

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Kauleshwar Singh

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Bijli Devi 77. Manju Devi

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Sanju Devi

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Satya Narayan Singh

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Baidhnath Singh

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Jaimani Devi

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Kailash Devi

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Most. Arti Devi … Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Amar Kumar Sinha, Advocate Mr. Kundan Kumar Ambastha, Advocate Mr. Sumit Kumar, Advocate For the Respondents :

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09/13.06.2024 Heard Mr. Amar Kumar Sinha, learned counsel for the plaintiffs/ appellants.

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Being aggrieved and dissatisfied with the judgment and decree dated 12.08.2016 (decree signed on 26.08.2016) passed by the learned District Judge-II, Chatra dismissing the Title Appeal No.51 of 2009 and confirming the judgment and decree dated 16.09.2009 (decree signed on 13.10.2009) passed by the learned Subordinate Judge-I, Chatra in Partition Suit No.09 of 1998, the plaintiffs/appellants have preferred this second appeal.

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Partition Suit No.09 of 1998 was instituted for partition of the lands mentioned in Schedule-C to the plaint, claiming 2/3^rd share therein and accordingly, prayer was made for preliminary decree to be passed in favour of the plaintiffs by appointing a survey knowing Pleader Commissioner, a separate takhta of their share be carved out and possession of the same to be delivered to them with costs of the suit.

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The case of the plaintiffs/appellants before the learned trial Court was as under:

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The case of the plaintiffs was that lands described in Schedule 'A' to the plaint are covered under khata no.9, 23, and 29 of village Lipda, P.S. Simaria, District Chatra. It was stated that relationship of plaintiffs with defendants no.1 to 4 will appear from genealogy given in Schedule 'B' to the plaint. It was stated that lands measuring 98.16 acres instead of 108 acres as shown in sale deed was acquired by Srimati Sumitra Devi wife of Rewat Lal Singh and Jasumati Devi @ Yasoda Devi wife of Late Govind Lal Singh by virtue of a registered sale deed dated 11.02.1937 executed by Mostt. Fulo Kueri and Mostt. Kaushlya Kueri. Thereafter the lands covered under Khata no. 26 and 28 which were acquired by Jasumati Devi and Sumitra Devi were jointly sold by Jasumati Devi and Sumitra Devi and as such lands of these two khatas are not included in suit. Some portion of lands of Khata no.29 comprised under Plot no.200, 196 and 67 are also omitted from the suit land because the same were settled to Dar-raiyats.

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Further case of plaintiffs was that the lands mentioned in Schedule 'A' to the plaint were originally acquired out of joint family fund as was decided in an earlier title suit no.23/84 filed by these plaintiffs as purchasers from Jasumati Devi against defendant no.1 and his transferees. It was found and observed that there was partition between the heirs of Sumitra Devi and Jasumati Devi and in view of the said observation, lands which fell in exclusive share and possession of Jasumati Devi are given in details in Schedule 'C' to the plaint.

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It was stated that a land Ceiling Case No.178 of 1973 was drawn up in the name of Jasumati Devi and final order was passed on 19.01.1976 holding that number of units of the holder of land of Srimati Jasumati Devi being three and each unit are entitled to right up to 45 acres and accordingly proceeding under the Ceiling Case was dropped. It is denied that aforesaid Ceiling Case was

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instituted by Jasumati Devi nor she was a land holder under Ceiling Ease. further It is denied that it was held in the Ceiling Case that further defendant no.2 was entitled to 45 acres. It was further stated that pleading of defendant no.1 in Title Suit no.23/84 was that he was entitled to 1/3^rd share out of 1/2 share of land of Jasumati Devi Kueri. It was further stated that the plaintiffs and defendant no.1 have sold or settled in dar-raiyati some lands of Khata no. 23 and 29 and these Vendees and dar-raiyats are defendants no.5 to 28. It was contended that the interest of transferees members to the parties are liable to be adjusted and apportioned from the share and takhta of plaintiffs and defendants no.1 to 4 but it was further contended that the plaintiffs and defendants 1 to 4 are not bound by transaction made by others. It was further contended that in view of the finding of the court in Title Suit no.23/84 the admitted position is that the plaintiffs as heirs of Jasumati Devi/Kueri are entitled to 2/3^rd share, who died in jointness with plaintiffs and defendant no.1 to 4 are entitled to 1/3^rd share only out of the suit land mentioned in Schedule 'C'.

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It was stated that in view of the earlier Title Suit No.23/84 and increasing in the members to the family, dispute started and smooth cultivation of the suit land has become difficult by the plaintiffs. Defendant no.1 to 4 and their transferees are also creating troubles for which plaintiffs called upon the defendants no.1 to 4 on 01.01.98 to get the land partitioned by metes and bounds but defendant no.1 to 4 have made accent, but they are postponing and ultimately refused to partition amicably on 15.5.98, hence the suit was instituted. It is stated that defendants no. 5 to 28 are transferees and dar-raiyats from the plaintiffs and defendants no.1 and their ancestor is Govind Lal Singh. It was further stated that Jasumati Devi died on February 1994 and on her death her share was

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succeeded by these plaintiffs exclusively. It was further stated that Govind Lal Singh, who was husband of Jasumati Devi, was first married to Punam Kumari and through her he had a son Ambika Singh, who also died in or about the year 1967 leaving behind a son, defendant no.1, widow defendant no.2 and daughters, defendants no.3 and 4. Govind Lal Singh again married for second time with Jasumati Devi and through her he also had a son namely Ishwar Singh, who died leaving behind two sons and one daughter, who was plaintiff in the suit. Plaintiffs have shown details of cause of action for the suit in para 16 of the plaint.

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The case of the defendants before the learned trial Court was as

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under:

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Defendants no.1 and 2 appeared and they have filed a joint written statement on their behalf According to them, there is no cause of action for the suit against these defendants. These defendants have admitted the assertions and averments made in the plaint and they have disclosed that these defendants have already sold the land in favour of different persons to the extent of their 1/3^rd share. It was contended that the sold land should be given to the purchasers in allotment to the extent of share of defendant no.1 only. According to these defendants plaintiffs are entitled to get 2/3^rd share in the suit properties.

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Defendants no.3 appeared and she has also filed a separate written statement on her behalf. According to her there is no cause of action for the suit and the plaintiffs are not entitled for any relief. However, this defendant has also admitted the case of the plaintiffs and written statement filed by her appears to be copy of the written statement filed by defendant no.1 and 2 to some extent. According to her, defendants no.1 to 4 are entitled to 1/3^rd share only. It

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was stated that Jasumati Kueri had sold some lands during her life time for her legal necessity and benefit of the family including defendants no.1 to 4, hence land should be excluded from the share of both parties. It was further stated that the plaintiffs have sold two plots i.e. Plot no.321 and 128 under Khata no.23 and 29, which is mentioned in Schedule 'C' of the plaint for the legal necessity and benefit of the whole family. Hence these two plots should be excluded from the suit and share of both parties. Actually this defendant has supported the case of the plaintiffs in their pleadings.

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Defendants no.14 to 21 and 23 to 28 appeared and they have contested the suit by filing a joint written statement on their behalf. According to them, the suit is not maintainable in its present form. The plaintiffs have no cause of action for the suit and the suit is barred by principle of resjudicata waiver and estoppel and sufficient court fee has not been paid , the claim of the plaintiffs is hit by the provision of Order II Rule2 of C.P.C. and also u/s 34 of the Specific Relief Act. It is bad on score of non-joinder of necessary parties. The claim of the plaintiffs is also barred by law of limitation, ouster, adverse possession. It was contended that as per the avowed stand of the plaintiffs in previous Title Suit no.23/84 regarding partition the present suit, again for partition is misconceived, collusive, untenable, and can not lie. It was further contended that two plaintiffs namely Jugal Kishore Singh and Nand Kishore Singh of T.S. no.23/84 are the same as in instant case and their pleadings what constitute, waiver, acquiescence estoppel in the present case would not permit them to reverse their committed stand. It was asserted that T.S. No.23/84 was dismissed by the judgment and decree of the Subordinate Judge, Hazaribagh and the same was confirmed up to Supreme Court. It was further asserted that consistent case of the plaintiffs and Jasumati Devi was

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that there was a partition some years ago, whereafter properties were divided under written instrument. The facts pleaded in said T.S. no.23/84 and finding in the same would completely ruled out a case of jointness between the parties. There is no unity of title or possession among the parties only in items of the properties in suit. It was asserted that both the plaintiffs and contesting defendants have admitted transfer of lands to these defendants and agreed with the same and accordingly by them transferees are to be duly accommodated. It is a fact that these defendants had been put in actual possession of the lands denied and they can not be allowed to be disturbed from the parcel of the land owned and possessed by them. The purchasers also divided the land interse. According to these defendants, the suit is fit to be dismissed as being vexatious with special costs.

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Defendants no.6 to 13 have also contested the suit by filing a separate written statement. It was contended that these defendants have been unnecessarily dragged in the suit. Defendant no.11 Bibi Saibun Khatoon & defendant no.12 Bibi Saliman are one and same lady. It was stated that there was no such pleadings of the parties in earlier Title Suit no.23/84 but in fact parties to that suit had admitted that heirs of Sumitra Devi and that of Jasumati Devi have already partitioned their land purchased through sale deed no. dated 11.2.37. It was further stated that it is also an admitted facts that these defendants since the date of purchase of specific portion of land of plot no.128 under Khata no. 29 of village Lipda have been coming in possession and after considerable improvement namely digging of well planting of several trees, the construction of houses and also improving quality of land, everything was done within the knowledge of heirs of Rewat Lal Singh and Govind Lal Singh. Thus these defendants had acquired indefeasible right, title and interest over their respective

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portion of lands of plot no.128. It was submitted on behalf of these defendants that after failure of plaintiffs nos.1 and 2 with Title Suit no.23/84 up to the Hon'ble Court, it was natural for the plaintiffs to file a suit for partition for carving out their separate takhta. It was further stated that plaintiffs and contesting defendants have practically accepted that whatever lands were sold either by plaintiffs no.1 and 2 or by defendant no.1, purchasers should not be disturbed. However, it is true that lands sold by plaintiffs no.1 and 2 should be adjusted out of the share of defendant no.1 to 4. According to these defendants, the plaintiffs are entitled to get 2/3^rd share. According to these defendants, lands mentioned in Schedule 'C' should be partitioned after deleting plot no. 128. It was stated that plaintiffs have 20 acres and and odd lands and defendants no.1 to 4 had 10 Acres and odd lands in their share, out of 30 acres land but then unfortunately defendant no.1 alone has already sold more or less then 26 acres land and thus the purchasers of defendant no.1 through sale deed dated 07.01.84 and subsequent sale deed, who have purchased simply the risk and such purchasers can not acquire right, title and interest over more than 2.50 acres and odd lands which would have been the extent of his share and that too such right, title and interest shall be placed to the preference amongst several such sale deeds executed by defendant no.1 since 07.01.84 onwards. According to these defendants, plaintiffs no.1 and 2 have sold 4.31 ½ acres through sale deeds and the same have already been admitted by the defendants no.1, 2 and 3 in their written statement. It was asserted that the suit suffers from the misjoinder of defendants and the same is hit by principles of waiver, acquiescence, estoppel and also under the provisions of Specific Relief Act.

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Defendant no.3(a) has adopted the written statement filed on behalf of her mother, defendant no.3.

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Defendants no. 31 and 32 have also filed written statement separately on their behalf. According to these defendants, the suit is not maintainable These defendants have also attacked on score of cause of action and according to them, the suit is also barred under various principle and provisions of law. It was contended that it is an admitted case of the plaintiffs and defendant no. 1 to 4 that purchasers of land sold by plaintiffs no.1 and 2 and defendant no.1 should not be disturbed and the purchasers will be allowed to remain in occupation of their respective purchased land. It was submitted that finding defendant no.1 Sheo Nandan Singh is in peaceful cultivating possession over Khata no. 29, Plot no.209, These defendants purchased 70 decimals of land out of 2.56 acres, Plot no.41, Area 48 Decimals out of 1.48 acres, Plot no.21, Area 50 decimals out of 1.74 acres and plot no. 408 area 32 decimals along with defendant no.29 Leyakat Mian and defendant no.35 Nasiruddin Mian on payment of valuable consideration through registered sale deed no.1180 of 1993 dated 01.03.93 and jointly they came in possession since from the date of purchase. According to these defendants, the suit suffers from misjoinder of parties and same was hit under the provisions of Specific Relief Act.

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Out of defendant no.41 to 66, only defendant no. 41 to 43 appeared and stated by filing written statement that they have got no concern with the suit land. It was further pleaded that the land of Sumitra Devi wife of Rewat Lal Singh has not been included in the suit. It may be noted that ex parte hearing was ordered against defendant no. 44 to 66.

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Mr. Amar Kumar Sinha, learned counsel for the appellants submits that the learned Trial Court as well as the Appellate Court have erred in

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coming to the conclusion that all the properties were sold and in view of that partition was there. He submits that this finding is contradictory to their own conclusion with regard to the partition. He draws attention of the Court to the finding of the learned Trial Court as well as Appellate Court and submits that both the Courts have held that the partition was not taken place and in spite of that, the suit was dismissed, which was affirmed by the learned Appellate Court. In light of this, he submits that this second appeal may kindly be admitted on the law point that the suit property is the ancestral property of plaintiffs and defendant nos. 1 to 4 and the learned Appellate Court having held that no partition took place between the plaintiffs and the defendants by metes and bounds and the plaintiffs have 2/3^rd share and the defendant nos. 1 to 4 have only 1/3^rd share in the suit land, the learned Appellate Court had no option, but to decree the suit and the findings of the learned Appellate Court otherwise in this regard is wholly perverse and the same is against the mandate of law. He further submits that the provisions contained in Order XLI Rule 31 of Code of Civil Procedure have not been followed without framing of any point, the learned Appellate Court has decided the appeal. On these law points, he submits that this second appeal may kindly be admitted. According to him, merely separate mess cannot a ground of holding that the partition was there and to buttress this argument, he relied upon the judgment passed in the case of Deoki Mallah v. Surji Mallahain , reported in 1992 2 BLJR 1031 . He further relied upon the judgment passed in the case of Manjula and others Vs. Shyam Sunder and others , reported in (2022) 3 SCC 90 .

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In view of the above submissions of the learned counsel appearing for the appellant, the Court has gone through the judgments of the learned Trial Court as well as the learned Appellate Court. While deciding the suit, the learned Trial Court has framed 7 issues. Issue no.(iv) was with regard to unity of title and community of possession between the parties. The said issue was decided by the learned Trial Court considering the judgment passed in Title Suit No.23/1984 dated 03.01.1987 (Ext.A) as well as Exts. C and D, which were the certified copies of the judgment passed by the Hon'ble Patna High Court (Ranchi Bench) in first appeal and L.P.A, which was affirmed up to the Hon'ble Supreme Court. Although the learned Trial Court has come to the conclusion that partition was not established earlier, however, the learned Trial Court has found that all the transactions with regard to transfer of the lands were declared valid and legal operative by the Hon'ble Patna High Court (Ranchi Bench) in First Appeal No.22/1987, which was preferred against the judgment of the learned Subordinate Judge, Hazaribagh in Title Suit No.29/1984 and it was held that the sale deed executed by defendant no.1 in favour of defendant nos. 2 to 17 are legal, valid and operative and it was further held that sale deeds dated 07.01.1984 and 28.01.1984 are valid documents and transferer Sheo Nandan Singh (defendant no.1) was valid owner of the property in transfer. The learned Trial Court has further examined Ext.A-1 to A-1/10 and found that defendant no.1 Sheo Nandan Singh has executed several deeds after passing of the judgment by the learned Subordinate Judge, Hazaribagh in Title Suit No.29/1984 and came to the conclusion that both the sides have

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sold the property of their possession and decided issue no.(iv) against the plaintiffs/appellants.

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The said judgment of the learned Trial Court was challenged by the appellants herein in Title Appeal No.51/2009, which was decided by the first Appellate Court vide judgment dated 12.08.2016. The learned Appellate Court has also been pleased to dismiss the appeal affirming the judgment passed by the learned Trial Court. So far as the arguments made by Mr. Sinha, learned counsel for the appellants with regard to non-formulation of any point in light of Order XLI Rule 31 of the Code of Civil Procedure is concerned, this Court finds that the learned Appellate Court in paragraph 10 has formulated the point for deciding the appeal. Thus, one of the point argued by Mr. Sinha, learned counsel for the appellants is not in favour of the appellants.

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So far as unity of title is concerned, the learned Appellate Court has dealt in length that aspect before coming to any conclusion. The learned Appellate Court has considered all the exhibits as well as the judgment passed in Title Suit No.23/1984 and further examined the evidences of P.Ws. and D.Ws. and, thereafter, the learned Appellate Court has come to the conclusion that the plaintiffs/appellants have 2/3^rd share whereas the defendant nos. 1 to 4 have only 1/3^rd share in the suit land. The total area of suit Schedule-C land though has not been mentioned, but on calculation it comes to 28.53 acres and as per admission of defendant nos. 1, 2 and 3, the plaintiffs/appellants are said to be entitled to 19.02 acres land. P.W.1 in para 38 of his cross-examination, has narrated the names of vendees of

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Sheo Nandan Singh though he denied the possession of the vendees in para 48. P.W.4 in para 42 of his cross-examination, admitted that the plaintiffs/appellants had sold some lands to vendees who are in possession. Defendant nos. 1 and 2 have also admitted the aforesaid pleadings of the plaintiffs in para 8 of the written statement. Defendant no.3 has also pleaded similarly, but defendant nos. 6 to 13 have stated that defendant no.1 alone has already sold more or less 26 acres land, whereas, plaintiff nos. 1 and 2 have only 4.31 ½ acres of land. The learned Appellate Court further found that the plaintiffs/appellants have not mentioned the description of their sale deeds or transactions. The sale deeds which were marked as exhibits has also been considered by the learned Appellate Court. The entire property was sold by both the sides and in view of that, the learned Appellate Court has come to the conclusion that all the properties had been sold and in possession of the alienees and nothing was left out. The learned Appellate Court has rightly held that the execution of sale deeds by defendant no.1 was admitted, but they have not sought for any relief for declaration of sale deeds with respect to suit lands as null and void and not binding on the plaintiffs. Nothing was left for partition as both the parties had sold the entire suit lands to several persons including the defendants and the vendees are undisputably in possession of their respective purchased land. The plaintiffs/appellants had not claimed a decree for declaration of sale deeds with respect to suit lands void and also possession thereof and that in its absence the suit is not maintainable, was held by the learned Appellate Court and there is no illegality in holding the

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same.

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The learned Appellate Court has rightly held that neither the plaintiffs/ appellants have not questioned the sale deeds executed by defendant no.1 nor they have sought any relief for declaration of said transactions null and void and not binding on them. The transferees of the suit lands are in possession, as has been held by the learned Trial Court as well as the Appellate Court and they have not sought for any relief of possession in case of dispossession. In view of that, the learned Appellate Court has rightly come to the conclusion that Section 34 of the Specific Relief Act is also attracted in the issue in question and, thereafter, the learned Appellate Court has been pleased to affirm the judgment passed by the learned Trial Court.

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In the judgment relied by Mr. Sinha, learned counsel for the appellants in the case of Deoki Mallah v. Surji Mallahain (supra) , the facts were different. In that case, all the properties were not sold by both the sides and it was rightly held that merely separation of mess cannot be a ground for holding that the partition has taken place. In the facts of the present case, that judgment is not helping the appellants.

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In view of framing of the point by the learned Appellate Court in its judgment in paragraph 10, the judgment relied by Mr. Sinha, learned counsel for the appellants in the case of Manjula and others Vs. Shyam Sunder and others (supra) is also not helping the appellants.

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