Mungeshwar Sahoo, J.

1. This First Appeal is directed against the judgment and degree dated 28.02.1996 passed by sri Harideo Prasad, the learned Ist subordinate Judge, Aurangabad in Partition suit No.145/93 dismissing the plaintiff/appellants suit for partition with regard to the suit property measuring 15 Acres 45 decimals of Khata No.11.

2. The plaintiff/appellant filed the aforesaid partition Suit No.145/92 on facts inter alia that Dasain Gope was the common ancestor. A genealogical table has been given in Paragraph-2 of the plaint. According to the genealogy, Dasain Gope had four sons; namely; bishundhari Gope, Nemdhari Gope, Julumdhari Gope and tilakdhari Gope. Bishundhari Gope has three sons, namely; somaru Yadav, Mangru Yadav and Rambrikchh Yadav. Somaru Yadav had a son, Halkhori Yadav who had a son, prabhu Singh who is defendant No.2. It may be mentioned that Bishundhari and his three sons and Halkhori are dead. The son of Mangru and grandson of Rambrikchh are defendants.

3. The second son of Dasain Gope, namely, nemdhari Gope had two sons, Raghunandan Yadav and ramdeo Yadav. Raghunandan Yadav died leaving behind sukhdeo @ Kariman who is defendant No.1. Ramdeo died issueless. The third son of Dasain Gope, Julumdhari Gope had a son, Bishu Gope who died leaving behind Raghurai singh who was original defendant No.7. During pendency of suit, he also died. The fourth son, Tilakdhari Gope had a son, Chulhai Gope and Bajrangi Singh, the plaintiff/appellant is the son of said Chulhai Gope.

4. According to the plaintiffs case, the suit property is recorded in the old survey record of right in the name of Dasain Gope. The three sons of Dasain Gope had separate Khatiyans in their names but no separate Khatiyan was recorded in the name of Tilakdhari Gope. There had been no partition by meets and bounds between the sons of dasain Gope and till date, the parties are cultivating according to their convenience.

5. The further case is that except the suit land, the other ancestral property had already been partitioned, and therefore, the properties are no included in this suit.

6. The further case of the plaintiff is that raghunandan Gope was Karta and a clever man and so he had all the papers and was managing the family. By playing fraud, he prepared some documents. In 1946-47, a Rent suit was filed being Rent Suit No.2110 of 1946-47 and according to that Rent Suit also, the land was joint. The suit lands are not of Raghunandan otherwise no dispute would have arisen as would be evident from Title Suit No.29 of 1956. The judgment and decree passed in that Title Suit No.29 of 1956 is wrong and the court exceeded his jurisdiction in passing the judgment, as such, the judgment is void and not required to be set aside by filing suit. The parties had not signed the award and wrong fact was placed before the court. The documents in favour of the defendant No.1 are hit by Benami Transaction Act. By relinquishment deed, no title can be transferred.

7. The plaintiffs further case is that his father, chulhai Gope had no legal right to sell the property of Khata no.11 because after death of Dasain Gope, all the four sons of Dasain Gope had 1/4th share in it. Many litigations are going on between the parties and therefore, it is necessary for partitioning the suit property.

8. The defendant No.1 Sukhdeo Singh appeared and filed a contesting written statement.

9. The defendant No.1 in the written statements besides taking various legal pleas mainly contended that earlier this very plaintiff filed Title Suit No.29 of 1956 in which by the intervention of the court, punches were appointed and they gave award which was confirmed by the court. In the said suit, the plaintiff had admitted the fact that his father had sold the land of Khata No.11 to Ram Bhajan gope and said Ram Bhajan Gope in turn registered a relinquishment deed in favour of this defendant No.1 on 11.07.1949 and since this defendant No.1 is coming in cultivating possession. Afte