JUDGMENT :

1. Heard Mr. Alok Lal, learned counsel appearing for the appellants and Mr. Sudhir Kumar Sharma, learned counsel appearing for the respondents.

2. This First Appeal has been filed against the judgment and decree dated 26.03.2007 and 02.04.2007 respectively, passed by the learned Sub-Judge-I, Garhwa in Partition Suit No. 04 of 2001. The Suit was instituted for a preliminary decree for 1/16th Share of Schedule A, B, C and D of the suit land and it was also prayed by filing the said partition suit that 1/3rd share of suit land of Schedule A/1 be passed in favour of the plaintiff No.1 and 1/8th Share of Schedule A, B, C and D and 1/12th share of Schedule A/1 be passed in favour of each of the plaintiff Nos. 2 to 6 and suitable takhta be carved out by a survey knowing Commissioner including movable and immovable property be allotted to each plaintiffs. Accordingly, it was prayed before the learned court below that final decree be passed and the plaintiffs be delivered with respect to under the process of the Court. A separate share of plaintiffs in movable property of schedule ‘D’ may be carved out through said Advocate Commissioner and final decree may be prepared. It was undertaken by the plaintiffs in the suit that all cost of the suit land may be awarded to the plaintiffs.

3. From the pleadings and arguments, it appears that the plaintiffs namely Most. Khaderan Devi @ Sahodari Devi along with others, had filed Partition Suit No. 4 of 2001 against the defendants namely, Jai Prakash Gupta and others, for partition of the suit land.

4. The plaintiffs have stated in their petition before the learned court below that by virtue of sale deed No.689 executed on 18.02.1954 and sale deed No. 2263 executed on 23.03.1985, Late Baijnath Sah @ Baijnath Prasad Gupta owned and possessed land 0.04 decimal and 0.03 acres of land respectively, in Garhwa Town. Similarly, by virtue of sale deed No. 4511 executed on 22.07.1976, Late Baijnath Prasad Gupta purchased 1.89 acres of land along with house and Mahua trees situated in plot No.267 and 291 in village - Ursugi. The full description of the lands along with house so purchased by Late Baijnath Prasad Sah @ Baijnath Prasad Gupta has been shown in Schedule ‘A’ appended at the foot of the plaint. Late Baijnath Prasad constructed Pucca double storey house building in Garhwa Town Purani Bazar which is still coming in joint possession of plaintiffs and defendants. Further, over plot no. 1908 under Khata No. 1113, besides above purchased land, by virtue of panchnama Late Baijnath Prasad Sah got ½ share in plot no.1096 under Khata No. 253 of Garhwa Town Purani Bazar. This Panchnama Bantwara relates to the ancestral house of Late Baijnath Prasad Gupta which he got from family partition by metes and bounds from his brother Jagdish Prasad. Thus, the total land held by Late Baijnath Prasad Gupta which has been fully described in Schedule ‘A’ of the plaint, still exists. Late Baijnath Prasad Gupta purchased the lands during his life time in the name of his two wives namely, Sunaina Devi and Most. Khaderan Devi @ Sahodari Devi by virtue of three sale deeds for a valuable consideration full description of which has been mentioned in Schedule ‘B’ appended at the foot of the plaint. Similarly, Late Baijnath Prasad Gupta had purchased the lands during his life time in village Ursugi Tola Kusmaha by virtue of sale deed No. 4512 dated 22.07.1976 and 5486 dated 10.11.1976 in the name of his two sons namely, Jai Prakash Gupta (Defendant No.1) & Om Prakash Gupta (since died). The second son of Baijnath Prasad Gupta namely, Om Prakash Gupta died unmarried during the life time of his father Baijnath Prasad Gupta. The full description of land so purchased in the name of Jai Prakash Prasad and Om Prakash Prasad have been shown in Schedule ‘C’ appended at the foot of the plaint. Besides above immovable (land) properties, Late Baijnath Prasad Gupta had purchased two Trucks bearing No. MP 27B-8879, MP 27B-0170 and One