JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Being aggrieved and dissatisfied with the judgment and decree dated 9th September, 1968 passed by subordinate Jude 1st Court, Midnapore, in TA no.639 of 1967, present second appeal has been preferred by the defendant/appellants. By the impugned judgment learned court below has set aside the decree passed by learned trial court in TS No. 348 of 1963.

2. Plaintiffs filed the aforesaid suit with a prayer for declaration confirmation of possession and alternatively for recovery of possession and permanent injunction. According to plaintiffs, they have 14 annas 5 gonda share in the ‘ka’ and ‘kha’ schedule land, 12 annas 10 gondas share in the ‘ga’ schedule land 16 annas share in the ‘gha’ schedule land. One Nilambar Singha appears to be the common ancestor of the plaintiff who died in 1340 BS and his wife predeceased him. Nilambar was survived by his two sons Sarada and Barada. Bityamoyee is the wife of Sarada and Bindubasini in the wife of Baroada-plaintiff no. 1 and 2 are the sons of Barada and Gajendra and Nagendra are the sons of Sarada. Giribala is the wife of Ganjendra and defendant no. 12 to 17 are the children of Gajendra.

3. Plaintiffs further case is that on the death of Lakhu Mondal his four sons amicably partitioned the property left by Lakhu before the district settlement operation. Plot no. 656/687 and 656/660 appertaining to khatian no.8 were allotted to Kailash one of the sons of Lakhu. The rest of the land described in the ‘ka’ schedule were allotted to Akshoy, Krishna and Haramoni, the sons and the sons wife of Lakhu. Akshoy and Haramoni sold their 2/3rd share in the ‘ka’ and ‘gha schedule land to Krishna by a deed dated 22nd Magh, 1312 BS. The ‘ga’ schedule land was sold by Akshoy Kailash and Krishna and Haramoni to plaintiffs predecessor Nilambar by a deed dated 25thJaistha 1311 BS and in such land Gopal and Akshoy had interest by virtue of partition. The ‘kha’ schedule land was allotted to Krishna alone though it was wrongly recorded in the name of Krishna, Akshoy and Hiramani. Krishna sold ‘ka’ and ‘kha’ schedule properties in equal share to the plaintiff No.1 and 2 and Gejendra. By a deed dated 26.01.1940, the share of Gajendra devolved upon plaintiff no. 4 and defendant no. 11 to 17. Plaintiff 1 and 2 have 12 annas share in the ‘ka’ and khas schedule land and plaintiff no. 3 and 4 have 2 annas 5 gondas share therein. Their total share is 14 annas 5 gondas. Nilamabar possessed the ‘ga’ schedule property by purchase which devolved after his death upon Manmatho, Pramotho, Nagendra, Gajendra and Nityamoyee. Krishna died leaving behind his son Rashbihari, who sold the ‘gha’ schedule property to plaintiffs no. 1 and 2 by a deed dated 7th chaitra 1351 BS. In the RS record, the lands have not been correctly recorded in the name of the plaintiffs in accordance with their respective share. The defendants have allegedly trespassed some of the lands and their possession have been noted and as such plaintiffs filed the aforesaid suit

4. Defendant 1 to 4 contested the suit by filing written statement contending that the suit property belonged to Kailash and his brothers. They used to possess different portions of the suit land by amicable arrangement without regular partition by meters and bounds. Kailash did not sell his interest by the alleged deed dated 25thJaistha 1311BS. Kailash had 1/4th share in khatian no. 41 and he had possession in plot no. 57-59 and 71. Plot no. 57 and 58 have been duly recorded in his name but the record in respect of plot no. 59 is erroneous. The contesting defendants are possessing the plot nos. 57 to 59 adversely to the interest of the real owners for more than 12 years. The defendant had a pan baraj on plot no. 57 and they had a tank on plot no. 58, which was subsequently converted into a baraj. The tank in plot no. 59 is converted subsequently into paddy land. In ‘gha’ schedule land, Kailah had 1/4th share and he was in possession of plot no. 74 and 48. T