RAM CHANDRA PRASAD SINHA, J.

1. This Letters Patent Appeal by the decree-holders has been filed against the judgment and order dated 26-11-1970 passed by a learned single Judge of this Court in Misc. Appeal No. 227 of 1968 reversing the judgment and order dated 5-8-1968 passed by the First Subordinate Judge, Muzaffarpur, in Misc. Case No. 81 of 1966 arising out of an objection under S.47 of the Civil P.C. (hereinafter referred to as the Code) filed by the judgment-debtor-respondent in Execution Case No.109 of 1964.

2. The relevant facts, in brief, are as follows : One Achey Lal had two sons Ramdhani Lal and Mahtab Lal, Ramdhanis son Jagdip Sahay had three sons Jaimangal Prasad, Rameshwar Bajrang and Shiva Prasad, Mahtab Lal had four sons Raghubans Sahay, Anant Sahay. Narsing Sahay and Gulzar Sahay. Anant Sahay had two sons Lalji Sahay and Bhagwan Sahay. Lalji had also two sons, namely, Kailash Bihari and Rajpati Sahay, Kailash Bihari and Rajpati has got one son each namely, Harinandan Prasad and Ramchandra Prasad respectively. Bhagwan Sahay had died issueless. Shiva Prasad, the father of appellants 1 and 2 and husband of appellant No. 3, filed Title Suit No. 90 of 1949 in the court of Subordinate Judge, Muzaffarpur which on transfer to the court of Additional Subordinate Judge III, Muzaffarpur, was numbered as Title Suit No. 90/24 of 1949/54. In the aforesaid suit, descendants of Raghubans Sahay were defendants Nos. 9 and 10 and were described as defendants 3rd party. Defendants 1 to 4 were descendants of Anant Sahay and mentioned as defendants 1st party. Defendants Nos. 5 and 6, the descendants of Gulzar Sahay and defendants Nos. 7 and 8, descendants of Jagdip Sahay, were described as defendants 2nd party. Other defendants described as defendants 4th party, except defendant Nos. 11 and 12. were the transferee from some co-sharers. Defendants 11 and 12 were tenants in occupation of some houses.

3. The case of the plaintiff was that the aforesaid two branches descending from common ancestor Achey Lal had become separate long before the Cadastral survey. In the year 1893 Bhagwan Sahay had brought a partition suit No. 98 of 1893 in the court of Subordinate Judge at Muzaffarpur which ended in a compromise decree by which the properties mentioned in Sch.2 of the plaint were given to the shares of Bhagwan Sahay and Lalji Sahay although there was a disruption of the joint status of all the branches who were the parties to the said suit including Bhagwan Sahay and his brother. Bhagwan Sahay thereafter came to Muzaffarpur town and settled there and acquired lands in his own name and in the name of his wife and built houses which were described in Sch.1 of the plaint. He was in exclusive possession of those Houses. In the partition decree Bhagwan Sahay and his brother Lalji Sahay had got 17 bighas of Mukarrari lands in village Jainatpur which were divided by metes and bounds amicably and the mukarrari lands mentioned in Sch.3 of the plaint came to the exclusive possession of Bhagwan Sahay and the orchard described in Sch.4 of the plaint also came to him. The only issue, a daughter, of Bhagwan Sahay and his wife died long ago and then he executed a deed of gift on 24-2-1942 in favour of Shiva Prasad in respect of all his moveable and immoveable properties out of love and affection and he came in possession of those properties. The sole plaintiff Shiva Prasad alleged that the defendants first party had dispossessed the plaintiff from all the properties mentioned in Schs.1, 3 and 4 of the plaint on the 15th Baisakh 1352 Fasli and had prayed for recovery of possession of aforesaid properties on ejectment of defendants first party and defendants 11 and 12. Alternatively, the plaintiff had prayed for a joint possession with the defendants first party in respect of the share of Bhagwan Sahay in the lands given in Sch.2 of the plaint if the case of private partition was not found to have been proved. A decree for mesne profits was also