JUDGMENT :

1. Heard Mr. Prashant Pallav assisted by Ms. Monalisa Singh, learned counsel appearing for the appellants and Mr. Shankar Lal Agarwal, learned counsel appearing for respondent no.1.

2. The appellants have preferred this First Appeal against the judgment and decree dated 31.05.2008 and 05.06.2008 respectively passed by the learned Subordinate Judge No. I, Deoghar in Title (Partition) Suit No. 109 of 2006.

3. The appellants/plaintiffs have instituted Title (Partition) Suit No. 109 of 2006 for a decree of partition to the extent of 1/2 share in favour of the appellants/plaintiffs in property described in Schedule-I and IIA of the plaint and also for a decree of partition in favour of appellant no.2/plaintiff no.2 to the extent of 1/2 share in the property described in Schedule-1A and 2 of the plaint. It has been further prayed for granting permanent injunction against the respondents/defendants restraining them to collect the rent in respect of various shops situated at property described in Schedule-I of the plaint. The appellants/plaintiffs have also prayed for the cost of the suit and any other relief or reliefs to which they would be deemed entitled.

4. Vide judgment dated 31.05.2008, learned Subordinate Judge No. I, Deoghar has partly decreed and partly dismissed the suit on contest without cost and declared that only plaintiff no.2 has got half share in the property described in Schedule-I/A. It has been further declared that the plaintiffs have got no share in the rest property described in Schedules of the plaint and accordingly preliminary decree was directed to be prepared which was prepared on 05.06.2008.

5. It was the case of the appellants/plaintiffs before the court below that the parties are Hindu, governed by Mitakshra School of Hindu Law and appellant no.1/plaintiff no.1 is the mother of appellant/plaintiff nos. 2, 3 and all the respondents/defendants. Similarly, plaintiff nos. 2 and 3 and the defendants are related as brothers and sisters. It was alleged that Kesho Prasad Gupta, the husband of plaintiff no.1 and father of plaintiff nos. 2 and 3 and the defendants acquired a piece of land and house at Mouza- Shayamganj within Town Plan plot no. 724 and 725 having an area of two Kattha, 6 ½ Dhoor through a registered sale deed bearing No. 621 dated 01.02.1970 in the name of his brother Bihari Lal Gupta and eldest son Dinesh Prasad Gupta (respondent no.1/defendant no.1). Dinesh Prasad Gupta was aged about 5-6 years at the time of acquisition of property and there are recitals in the deed that entire transaction was made through Kesho Prasad Gupta and an agreement for sale was executed by the vendor in favour of Kesho Prasad Gupta on 14.12.1969. Thus, the deed itself witnesses that the purchase was made by Kesho Prasad Gupta in the name of eldest son Dinesh Prasad Gupta as well as his brother Bihari Lal Gupta. It was further case of the appellants/plaintiffs that subsequently a deed was executed by Bihari Lal Gupta on 03.06.1998 bearing registration No. 1658, wherein, it was admitted and acknowledged by Bihari Lal Gupta that entire consideration amount was paid by late Kesho Prasad Gupta for the property purchased in the year 1970. Kesho Prasad Gupta died in the year 1986 leaving behind the appellants/plaintiffs and respondents/defendants as his only heirs and successors as well as his one more son namely Raj Kapoor Gupta, who was the youngest son of the deceased Kesho Prasad Gupta, but right from the year 1998, he has become traceless and remains unheard by any of the members of the family and relative of the parties and that is why he has not been impleaded as party in the suit. It was further case of the appellants/plaintiffs that after the death of Kesho Prasad Gupta, the eldest son Dinesh Prasad Gupta started to act as Karta of the family and he got the deed of transfer executed by Bihari Lal Gupta in the year 1998 in his name and the said transfer was for the benefit of the entire members of the family i