D. P. Sinha, J.

This appeal has been preferred against the judgment and decree dated the 3rd October, 1972 passed by the Second Addl. Subordinate Judge of Muzaffarpur in Title Partition Suit No. 44/41 of 1965/70. The appellants were the defendants first party to the suit. The respondents first party were the plaintiffs. The plaintiffs had prayed for a declaration of their title and recovery of possession with respect to lands specified in schedule IV of the plaint having an area of 3 bighas 19 kathas which had been held in a proceeding under Section 145 of the Code of Criminal Procedure between the parties to be in possession of the appellants by an order dated the 3rd January 1965. It was alleged that as a result of that order the plaintiffs had also prayed, in the alternative, for a decree for partition of the lands mentioned in schedule V of the plaint and for allotment of a separate takhta to them in respect of their share amounting to 2/9ths therein and a share to the extent of 5/6ths in a jack fruit tree standing on plot no. 22. The suit has been decreed in full.

2. The defendant appellants has raised the plea of non-maintainability, previous partition and resjudicata.