S. N. Hussain, J.

1. This second appeal has been filed by the plaintiffs-respondents-appellants challenging the judgment and decree of the court of appeal below, by which the judgment and decree of the trial court was reversed.

2. This matter arises out of Title Suit No.122 of 1980, which was filed by the appellants with respect to municipal plot no.1100, holding no.206, ward no.2 of Sasaram Municipality containing kutcha tiled house as well as plot no.1103 against the defendants-respondents seeking the following reliefs :-

(a) Declaration of title of the plaintiff and recovery possession from the defendants regarding plot no.1100 (detailed in Schedule-B of the plaint ). (b) Direction to defendants no.1 to 10 to deliver the possession of plot no.1100 to the plaintiffs. (c) A decree of mesne profit in favour of the plaintiffs. (d) Direction to defendants no.1 to 10 not to obstruct the plaintiffs right of use of latrine over plot no.1103 (detailed in Schedule a of the plaint ). (e) A decree of cost of suit in favour of the plaintiffs. (f) Any other relief to which the plaintiffs are deemed entitled to.

3. The claim of the plaintiffs was that Sheikh Pir Bux had four sons, namely, Sheikh Abdul Rahman, Sheikh Abdul Karim, Sheikh Banarsi and Sheikh Hanif, out of whom Sheikh Hanif died issueless. Sheikh Abdul rahman and his wife Bibi Zainab had a son Noor Mohammad and two daughters Rabia Bibi and Zubaida Bibi, out of whom Noor Mohammad died ummarried in the year 1951, whereas, Rabia Bibi was plaintiff no.1 and zubaida Bibis (deceased) daughter, namely, Zulekha Bibi was plaintiff no.2. Heirs of Sheikh Abdul Karim were defendants no.1 to 6, whereas, heirs of sheikh Banarsi are defendants no.7 to 9, whereas, defendant no.10 was wife of defendant no.1 Nesar Ahmad.

4. It was also claimed by the plaintiffs that by registered sale-deed dated 15.02.1938 (Ext.7), Abdul Karim transferred his 1/4th share in plot no.1103 in favour of Abdul Rahman, who was duly mutated thereafter. It was further claimed that in the year 1945 Abdul Karim made oral gift of plot no.1100 to Noor Mohammad son of Abdul Rahman, who came and remained in possession till his death in 1951, whereafter, entire property of the said abdul Rahman and Noor Mohammad devolved upon the plaintiffs, who were their heirs. It was also claimed that the defendants forcibly entered in the suit house over plot no.1100 on 22.04.1980, whereafter, the suit was filed. Hence it is claimed that the plaintiffs have right, title and interest in the entire plot no.1100 which remained in their possession till the year 1980, whereas they have half share in plot no.1103, which remained in their possession till the year 1963.

5. On the other hand, the defendants contesting the claim of the plaintiffs asserted that the dates of death of Abdul Rahman and his son Noor mohammad given by the plaintiffs were absolutely wrong as Noor Mohammad died during life time of his father. It was also averred that Abdul Karim had a wife and several children and hence there was no occasion for him to transfer the suit land nor did he ever execute any sale-deed in favour of Abdul Rahman nor did he ever make any oral gift in favour of Noor Mohammad, rather Abdul karim executed and got registered a deed of Baimokassa dated 29.06.1963 in favour of his wife Bibi Heyatan (defendant no.6)in lieu of Dain Mohar with respect to portion of plots no.1100 and 1103, whereafter the transferee Bibi heyatan came in possession of the suit land and got her name mutated. It is also claimed that the defendants are coming in possession of the suit land since the life time of Abdul Karim and they had acquired title by adverse possession also.

6. Considering the aforesaid pleadings of the parties as well as the issues proposed by them, the trial court framed following issues:-

(i) Is the suit as framed is maintainable (ii) Whether the plaintiffs have cause of action to sue (iii) Is the suit barred by law of limitation, waiver, estoppel