The main legal point established in the judgment is the inapplicability of Section 4 of the Partition Act and the impact of sale deeds during the pendency of the suit on the plaintiffs' claim.

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.

2. The matter arises out of Title Suit No. 146 of 1972 which was filed on 28.09.1972 by the plaintiffs-appellants with respect to a house with land measuring 2 katha 9 dhurs bearing Holding No. 107, Circle No. 16, Ward No. 4 situated in Mohalla Dahiyawan within P.S. and Town of Chapra in the district of Saran, claiming the following reliefs:

(i) A decree of partition of half share of the plaintiffs in the suit property and for consequential orders.

(ii) Cost of litigation.

(iii) Any other relief to which the plaintiffs are entitled.

3. The suit was contested only by defendant Nos. 7 and 8 who were purchasers from defendant No. 6 by registered deeds dated 30.09.1972, 26.10.1973 and 12.07.1974 (Exts.A-II series) claiming that the plaintiffs had no concern with the suit property which belonged to Sampatia widow of Dalip Choudhary who was the grand mother of defendant No. 6. Considering the pleadings of the parties the following issues were framed by the trial court for deciding the title suit:

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs got any valid cause of action for the suit?

(iii) Is the suit hit by the principles of ouster and adverse possession?

(iv) Is there unity of any title and possession between the parties?

(v) Is the story of oral sale as propounded by defendant Nos. 6 to 8 is correct or the story propounded by defendant Nos. 1 to 5 is correct?

(vi) Whether the plaintiffs are entitled to a decree for partition, if so, to what extent?

(vii) To what relief or reliefs, if any, are the plaintiffs entitled?

4. On the basis of the aforesaid pleadings, evidences were led and arguments were placed on behalf of both the parties, whereafter Munsif-I, Chapra decreed the suit on contest with cost vide his judgment and decree dated 19.11.1979 after arriving at the following findings:

(a) Since the defendants had denied the plaintiffs case and had claimed that the suit property belonged to Sampatia wife of Dalip Choudhary who had acquired the land by purchase etc. whereafter her name was also entered in Mutation Records as owner, the initial onus is on the plaintiffs to prove that the property in question is ancestral property not exclusively belonging to Sampatia.

(b) Since the plaintiffs have claimed and proved that the property was purchased by Babulal Choudhary who left behind two sons Jagarnath Choudhary (grand father of plaintiff No. 1) and Dalip Choudhary (husband of Sampatia) who had half interest each in the suit properties, the onus has shifted on defendant Nos. 7 and 8 to prove that the property exclusively belonged to Sampatia wife of Dalip Choudhary half by inheritance from her husband and half by purchase from the plaintiffs ancestor in the year 1915 and also to prove that the said Sampatia continued in possession till her death and after her death defendant Nos. 1 to 6 were coming in possession till it was sold to defendant Nos. 7 and 8.

(c) There is absolutely no evidence to prove the alleged oral sale of half of the suit property by the ancestor of the plaintiffs to Sampatia.

(d) If at all defendant Nos. 7 and 8 have purchased only half share in the property and they had purchased litigation because their alleged transferor, namely defendant No. 6 had no right to sell the suit property more than his 1/4th share.

(e) Although the defendants have taken the plea of adverse possession and ouster against the plaintiffs, but they failed to establish the same. (f) There is unity of title and possession between the parties except defendant Nos. 7 and 8 and as such the plaintiffs are entitled for partition to the extent of half in the north of the suit property.

(g) The suit as framed is maintainable and the plaintiffs have valid cause of action for the suit and are entitled to the reliefs sought for.

5. Against the aforesaid judgment