SHIVA KIRTI SINGH, J

These two letters Patent Appeals have been heard together and are being disposed of by a common judgment as they arise out of and are directed against a common judgment and decree dated 14-5-1993 passed by a learned Single Judge of this Hon'ble Court in First Appeal No. 155/90 and 190/92. The aforesaid First Appeals also arose out of a common judgment in Title Partition suit No. 414/1987/130/1987 and Title Eviction Suit No. 59/1984/115/1987 respectively.

2. L.P.A. No. 48 of 1993 arises out of eviction suit in which the appellants Birendra Kumar Singh and Amrendra Kumar Singh both sons of late Deo Lal Singh were the plaintiffs. In this suit the plaintiffs claimed that they along with defendant nos. 7 to 12 were exclusive owners of the suit properties described In Schedule I of the plaint. Their case, in short, was that the original defendant no.1 Gauri Shankar Bhanjo (since deceased) had taken a lease of the suit land for a fixed period of lease from the plaintiffs and the defendant nos. 7 to 10 including Deo Lal Singh, Brahamdeo Singh and Deo Raj Singh for a fixed period of 20 years on yearly rental of Rs. 1800/- payable in two equal installments upo , the terms and conditions as mentioned in the registered deed of lease dated 10-9-1963. Relief for eviction of defendants no. 1 to 6 was sought, inter alia, on the ground of expiry of terms fixed by lease deed. The title eviction suit was decreed by the trial court against which the defendant first set preferred First Appeal No. 190/92 which was allowed by the judgment and decree under appeal in L.P.A. No. 48 of 1993,ontwin grounds that notice under section 106 of the Transfer of Property Act was necessary to maintain the suit and that the present suit by the plaintiffs alone is not maintainable in the eye of law because defendant nos. 7 to 10 did not asked for eviction of the lessee rather they objected to the same.

3. In L.P.A. No. 48 of 1993 appellants are Birendra Kumar Singh and his sons who were the plaintiffs in title partition suit no. 414 of 1987 wherein they have prayed for a decree for partition in respect of plaintiff's share to the extent of four annas of the properties described in Schedule I of the plaint with some other consequential relief’s. In this suit the plaintiffs made a further claim that from the written statement of defendant nos. 1 to 3 and 7 filed in title eviction suit no. 59/84 they came to know about the claim of Yamuna Singh and his sons that Shri Deoraj Singh had executed a deed of will on 18-4-1981 in their favour with respect to his 1/3rd share in joint family properties and subsequently Deoraj Singh had also executed a registered deed of gift dated 6-7 -84 in their favour with respect to his 1/3rd share in the joint family properties. Upon getting such knowledge they filed the partition suit in which their further case is that the aforesaid deeds of will and gift were forged, fabricated, illegal, null and void. According to them the deed of will was inoperative as it was never probated and the deed of gift for undivided share in Joint family properties was void ab initio, illegal and not binding upon other surviving co-larceners. Defendant nos. 8 and 9 filed a joint written statement supporting the case of the plaintiffs. On the other hand, defendant nos. 1 to 3, 7 and 10 pleaded that the Suit was not maintainable, inter alia, on account of previous partition as well as for non inclusion of plot nos. 83 and 165 which they clamed to be joint family properties. This suit was also decreed by the trial court which held the alleged will 'and gift deed to be inoperative and ineffective in law, found the defense of previous partition unacceptable and further held that plot no. 83 had already been given to the plaintiff no. 1 by the joint act of all the co-sharers through a registered deed dated 25-8-64 (Exhibit-5) and plot no. 165 was self acquired property of plaintiff no.1 (being a purchase in his own name) through a regi