MUNGESHWAR SAHOO, J.:–The defendants Ist party have filed this First Appeal against the Judgment and Decree dated 31.05.1979 passed by learned Vth Addl. Subordinate Judge, Bhagalpur in Title Suit No.7 of 1977 / 12 of 1979.

2. The plaintiffs respondents filed the aforesaid suit for declaration that the plaintiffs have acquired right, title and interest over the suit property and that the defendants have got no interest or title on the same. The suit lands are comprised within old plot No.113 measuring 59 decimal, old khata No.12 measuring 26 decimals in new plot No.392 and 34 decimal in new plot No.395 under new Khata No.121 total measuring 59 decimal as well as 1.10 acre of old plot No.113, old khata No.12 corresponding to 76 decimal of new plot No.397 and 50 decimal in new plot No.398 under new Khata No.8. According to the plaintiff, Sheikh Abdulla and Sheikh Arzoo were owner and in possession over 8.75 acres of lands of old plot No.113 in equal share. Sheikh Arzoo who had half share transferred 1.69 acres of land out of his share to one Sheikh Sharfuddin by registered sale deed dt.30.09.1944. Possession was delivered to Sharfuddin. Sheikh Arzoo had sold the property for repaying the mortgage amount of mortgagee Ataulla @ Atabul @ Attoo who was mortgagee with respect to 8 ana share on the basis of mortgage deed dated 22.05.1931. The amount was paid to him then he left possession, as such the transferee Sharfuddin remain in khas possession and thereafter, the bhoulidar Sheikh Niyamak cultivated the land on bhauli batai. There was partition between the branches of two owners in 1955. In that partition, Sharfuddin was allowed to remain in possession over 2.5 biggha land out of 3 biggha block and in lieu of 10 katthas land, Sharfuddin was given the land in another block by mutual adjustment with the heirs of Abdulla who were adjusted in three bigghas block. In view of this partition, the plaintiff came in possession of lands at two places, at one place 1.10 acre and in other place 59 decimal in plot No.113 itself. In the remaining portion of the land of plot No.113, the two tenants Sheikh Abdulla and Sheikh Arzoo remained in possession. He was mutated in States Shresta. In partition between the heirs of Abdulla and Arzoo, the lands of Sharfuddin was adjusted towards the land of Sheikh Arzoo.

3. The further case of the plaintiff is that Sheikh Sarfudddin sold his entire land purchased by registered sale deeds dated 23.09.1974 to the plaintiffs and the transferee came in possession and have been mutated. During the recent survey, one piece of the land were wrongly recorded in the name of the defendants, i.e., lands comprised within plot No.397 and 398 have been recorded in the name of the defendants whereas plot No.392 and 395 were recorded in the name of plaintiff. On the basis of the said wrong entry, the defendants started disturbing the possessing of the plaintiff.

4. The defendant Ist party filed contesting written statement. The defendant 2nd party also filed separate written statement. The main defence of defendant 2nd party is that Sheikh Arzoo did not transfer 1.69 acres of lands (3 bigghas land) to Sharfuddin and did not deliver possession of the same to Sharfuddin. The deed in favour of Sharfuddin remained a paper transaction as no consideration passed under the said sale deed. The sale deed was executed to pay the Sudhbharna money to Shekih Ataulla but the money was not paid so Ataulla remained in possession. Sheikh Arzoo died 30 years ago and then Sudhbharna amount was paid by heirs of Sheikh Arzoo much after the execution of the sale deed, so Sharfuddin never came in possession of the land covered under the sale deed. The entire 8.75 acres lands of plot No.113 was joint between the recorded tenant and there was no partition. Sheikh Sharfuddin produlently and collusively mutated his name, therefore, the defendant No.2 filed petition for correction of Jamabandi which is pending before D.C.L.R. The partition alleged by defe

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