1. The plaintiff-petitioner has filed this revision application against the order dated 30/03/1991, passed by the Subordinate Judge I, Palamau at Daltonganj, in Partition Suit No. 27 of 1973, by which he has rejected the prayer of the petitioner for allotting 1/12th share out of 1/14th share of original defendant No. 8, Jasmati Kuer, who died in the year 1989, during the pendency of the final decree proceeding and further held that defendant No. 5 has acquired share of defendant No. 8 on the basis of deed of gift executed by defendant No. 8 in his favour and the allotment of her shares amongst the three sets of parties by the Batwara Commissioner was wrong case.

2. The facts leading to filing of the present revision application are that the petitioner along with others filed Partition Suit No. 27/ 73 claiming 1/4th share in the suit properties. According to the averments made in the plaint, share of the plaintiff in the suit land was 1/4th, defendants Nos. 1 to 3 and 9 together have 1/4th share, defendants Nos. 5 to 7 together have 1/4th share and defendant No. 8 has 1/4th share.

3. Three sets of the written statements were filed in the said suit - one on behalf of defendants Nos. 1 to 3, other on behalf of defendants Nos. 4 to 8 and the third one by the purchaser defendant No. 10. Defendants Nos. 4 to 8, in their written statement, asserted that defendant No. 8 has executed a deed of gift with regard to her share to defendant No. 5 on 17-5-1949.

4. The suit was decreed and preliminary decree was passed on contest against defendants Nos. 1 to 3 and 10 and ex parte decree against defendants Nos. 4 to 9 on 29-5-75. Defendant No. 5 (opp. party No. 1) filed an appeal against the aforesaid preliminary decree in this High Court (Ranchi Bench) being F.A. No 5/75(R), which was dismissed for default.

5. After passing of the preliminary decree steps were taken for preparation of final decree and the Pleader Commissioner was appointed to carve out the Takhtas according to the shares declared in the preliminary decree. In the year 1989, defendant No. 8 Jasmati Kuer, who was having 1/ 4th share in the suit properties died. After her death her share was allotted by the Pleader Commissioner to the three claimants in equal shares, namely, the plaintiff was given 1/12th share, defendants Nos. 1 to 3 and 9 were given 1/12th share and defendants Nos. 5 to 7 the remaining 1/12th share.

6. The defendant No. 5 objected to the same as the share of defendant No. 8 was allotted to three branches without any order of the court. Thereafter the plaintiff-petitioner filed an application on 28-1-1991 stating, inter alia, that defendant No. 8 died in the year 1989 and on her death her 1/4th share passed on to three sets of the parties. The plaintiff jointly got 1/12th share and defendants Nos. 1 to 3 jointly got 1/12th share and defendants Nos. 5 to 7 got 1/12th share out of 1/4th share. At the time of Takhtabandi by the Batwara Commissioner, appointed by the court, the fact regarding the death of defendant No. 8 was brought to the knowledge of the Commissioner and as no objection was raised from any side, the Batwara Commissioner carved out the Takhta increasing the share of different sets, as aforesaid. In the court, a technical objection was raised on behalf of defendant No. 5 that the Commissioner acted in the said manner without any order of the court and as such prayer was made to pass necessary order to the effect that on account of death of Jasmati Kuer (defendant No. 8) the share of different sets of the parties has become 1/3rd, in place of 1/4th and they are entitled to get their increased share.

7. A rejoinder was filed to the aforesaid petition by defendant No. 5 on 11-2-91 stating therein that the preliminary decree was made only of the share of the plaintiff and not of the defendants. He as well as defendant No. 8 along with other defendants filed joint written statement and it was clearly stated therein that defendant No. 8 gifted he