The main legal point established in the judgment is that a simple suit for partition may not be maintainable if the plaintiff fails to prove unity of title and possession, and if there is a lack of action to set aside sale deeds executed by co-sharers.

Mungeshwar, J.

1. The plaintiff has filed this First Appeal against the judgment Sahoo, J. and decree dated 26.03.1981 passed by Sri John Dhan, the learned Subordinate Judge 2nd, Patna in title suit no.41 of 1978 dismissing the plaintiffs suit for partition.

2. The sole plaintiff-appellant filed the aforesaid title suit praying for partition of his half share with respect to Schedule-1 property and 1/5th share with respect to Schedule-2 property. In short, the plaintiffs case is that Gurusahay Mahton @ Raghunandan Mahton died before cadastral survey which took place in the year 1908-09 leaving behind his son, Dukhan Mahton and widow, Masomat Bigwa and a daughter, Sonphulwa. The plaintiff is the son of Sonphulwa. The wife of Dukhan Mahton, pre-deceased him and Dukhan Mahton died soon after cadastral survey leaving behind his mother, Masomat Bigwa and sister, Sonphulwa. After his death, Masomat Bigwa, Sonphulwa and the plaintiff came in possession of the properties of Gurusahay Mahton. After the death of Masomat Bigwa and Sonphulwa, the plaintiff became the heir of property of Dukhan Mahton. The further case is that the defendants are the heirs of other four sons of Bal Kishun Mahton. He and the defendants are coming in joint possession of the suit property. The suit Khata No.173 stands recorded in the name of Haritahal Mahton and Dukhan Mahton and therefore, plaintiff claimed 1/2 share in that Khata which is mentioned in Schedule-1. Khata No.95 is recorded in the name of Ramtahal Mahton, Haritahal Mahton, Gurusahay Mahton, all sons of Bal Kishun Mahton and Dukhan Mahton, son of Gurusahay Mahton and Masomat Bigwa and therefore, the plaintiff claimed 1/5th share in this property which is mentioned in Schedule-2. The plaintiff demanded partition but the defendants refused. Hence, the plaintiff filed the suit for partition.

3. On being noticed, defendant nos.1 to 5 filed a joint contesting written statement. The defendant nos.14 to 17, 19, 20 and 24 filed another contesting written statement. A formal written statement was also filed by guardian ad litem on behalf of the minors.

4. According to the written statements of the defendants, they admitted that Khata No.173 was recorded in the name of Haritahal Mahton and Dukhan Mahton. They also admitted that Khata No.95 was recorded in the name of Ramtahal Mahton, Haritahal Mahton, Gurusahay Mahton, Dukhan Mahton and Masomat Bigwa. Their main defence is that Bal Kishun Mahton had six sons namely Ramtahal Mahton, Shivtahal Mahton, Haritahal Mahton, Harsahay Mahton, Gurusahay Mahton and Raghunandan Mahton. According to them, Gurusahay Mahton and Raghunandan Mahton were two separate persons and not one person as alleged by the plaintiff. All the six sons had separated prior to cadastral survey. Gurusahay Mahton and his wife died much prior to cadastral survey leaving behind their son, Dukhan Mahton. Raghunandan Mahton also died before the survey leaving behind his widow, Masomat Bigwa. They were in separate possession which is shown in the record of right. Sonphulwa is not the daughter of Gurusahay Mahton or Raghunandan Mahton or Masomat Bigwa. Dukhan Mahton had no sister. According to the defendant nos.1 to 5, Sonphulwa was the daughter of Masomat Bigwas sister. On the death of parents of Dukhan Mahton, he being the minor re-united with Haritahal Mahton and therefore, the lands were recorded in their names jointly. He died in jointness with Haritahal soon after cadastral survey and therefore, Haritahal Mahton inherited his property by survivorship and came in possession. After his death, his son, Chamru Mahton came in possession and these defendant nos.1 to 5 are the sons of Chamru Mahton. Their grandfather, Haritahal Mahton had executed sham sale deed in favour of Harsahay Mahton, Dudheshwar Mahton and Deonarayan Mahton in respect of lands of Khata No.173. Since the transaction was sham and showy, no consideration was paid and so not acted upon. The entire land remained in posse