B.L.Yadav, J.

1. This is a defendants Letters Patent Appeal in a suit for declaration of title on the basis of two sale deeds dated 14th November, 1979 (Ext. 2 & 2/a) executed by one Sarifan Bibi, who was entitled to 1/2 share in their favour and the plaintiffs became owner of the property to the extent of 1/2 share and there was some dispute in cultivation, hence it was imperative that 1/2 share be partitioned. Consequently the relief for partition was also asked alongwith relief for declaration.

2. The factual matrix of the case is contained in the averments of the plaint. Suit properties belonged to one Budhan Mian father of defendant No. 1 and Nabi Hussain Mian. The plots were recorded in the survey settlement in the name of Budhan Mian as 3/4 share and Nabi Hussain Mian as 1/4 share. After the death of Budhan Mian, his son Nathuni Mian and daughter Sarifan Bibi became the surviving heirs entitled to 1/2 share each Smt. Sarifan Bibi executed two sale deeds of her 1/2 share in favour of plaintiff Nos. 1 and 2 but their possession was objected by the defendants-appellants and it was difficult to cultivate 1/2 share separately hence necessity for the suit arose.

3. The suit was contested by the defendants 1 to 10 by filing a written statement denying the plaintiffs allegations but later on defendant Nos. 6 to 10 filed a fresh written statement almost accepting the claim of the plaintiffs.

4. The issues framed by the trial court were as to whether the suit was maintainable, whether there was any cause of action for the suit, whether the suit was barred by the principles of estoppel, waiver and acquiescence and also barred by limitation, whether Sarifan Bibi, vendor of the plaintiffs was the daughter of Budhan Mian and whether the plaintiffs were entitled to the relief claimed for. Some other issues not very material were also framed.

5. The main issue was as to whether Sarifan Bibi was the sister of Nathuni Mian and daughter of Budhan Mian. But this issue was decided by the trial court on consideration of entire evidence available on the record holding that Sarifan Bibi was sister of Nathuni Mian and daughter of Budhan Mian. The sale deeds executed by Sarifan Bibi in respect of her 1/2 share in favour of plaintiffs were held to be legal and valid. The suit was accordingly decreed. Against that decree the defendants-appellants preferred an appeal which was dismissed by the learned Single Judge of this Court by judgment and decree dated 3rd September, 1991. This was also held that even though defendant Nos. 6 to 10 filed additional written statement subsequently without permission of the Court, but that itself would not entitle the defendants-appellants to any legal right. Against that judgment and decree the present Letters Patent Appeal has been filed.

6. It was urged by Sri N.K. Prasad, the learned Senior counsel for the appellants that the plaintiffs and their witnesses were catted upon to prove as to whether Sarifan Bibi was sister of Nathuni Mian. This Could be proved only by the statement of such witnesses who have special means of knowledge as provided under Sec. 50 of the Evidence Act (for short the Act). Under Order VIII Rule 9 of the Code of Civil Procedure (for short the Code) no subsequent written statement on behalf of defendants 6 to 10 could have been filed except by the leave of the Court. Such subsequent written statement could not have been accepted. It was further submitted that Sarifan Bibi was vendor and a party to the suit but was not examined hence adverse inference be drawn against plaintiffs-respondents under Sec. 114(g) of the Act.

7. Learned Counsel appearing for the respondents, on the other hand, refuted the submissions of the learned Counsel for the appellants and urged that conditions under Sec. 50 of the Act were fulfilled, and appellants did not state that assuming that Sarifan Bibi was not sister of Nathuni Mian, in that event whose daughter she was, non-compliance of provisions of Orde