JUDGMENT :

1. The appellants are the defendants Nos.1 & 2 who have preferred the appeal against the judgment and decree passed by the Senior Civil Judge-III, Jamshedpur in Title (Partition) Suit No. 113 of 2008 whereby and whereunder, the suit of the plaintiffs has been decreed for 1/5th share in the property detailed in Schedules-A and B of the plaint.

2. The parties will be referred by their original placement in the suit and shall include their legal representatives substituted at different stages.

3. Plaintiff Bikash Chandra Mondal filed the suit for partition of 1/5th Schedules-A and B property fully detailed in the plaint.

4. The plaintiffs’ case in brief is that both the parties are the sons of A.C. Mondal who died on 30.10.1976 leaving behind the following heirs and successors:

5. The schedule land was allotted by the landlord M/s TISCO Limited, Jamshepdur to Late A.C. Mondal bearing Holding No. C/3A situated at Jamshedpur. Defendant nos. 1 and 2 are living in the same premises and defendant no. 1 had constructed some rooms without a formal partition. One of the sons of A.C. Mondal namely, Amal Chandra Mondal, died unmarried on 13.09.2004 and another son Satish Chandra Das died on 09.02.1981 and his wife Chhaya Rani left her house for ever and is traceless since then. A.C. Mondal died on 30.10.1976. The request for partition remained unheeded. Hence the present suit.

6. The main contesting defendants are defendant nos. 1 and 2 namely, Bimal Chandra Mondal @ Atul and Bimal Mondal @ Botu. They have filed the joint written statement and contested the suit. It is averred that the plaintiffs had constructed double storey premises which is in their possession without any partition between the brothers of the plaintiffs and now they want to construct the double storey on the side of defendant no. 1. There was no occasion for demanding partition since both the parties were living separately in the portion of the house. It has not been admitted that Chhaya Rani, widow of Satish Chandra Das is not alive. With regard to the genealogy, it is averred that A.C. Mondal had only six sons and Bimal Naskar was not the son of A.C. Mondal. It is further contended that detail of total property of A.C. Mondal has not been disclosed. The property of the deceased left behind in the State of West Bengal has been fully detailed as paragraph 26 of the written statement. It is also contended that the plaintiffs purchased one residential flat situated at Mauza Sonari and the name of the flat is Shanti Vihar Apartment bearing No. C/26 measuring an area 750 Sq. Ft. This property has been purchased from the sale prices of 8 Kathas land at Nawapara.

7. Defendant nos. 3, 4 and 6 have filed their joint written statement and other defendants in their written statement have admitted the case of the plaintiffs. Defendants nos. 5 & 7 and defendants nos. 8 to 15 have supported the case of the plaintiffs by filing their joint written statement.

8. On the basis of the pleadings of the parties, the following issues have been framed in the trial court:

I. Whether the suit as framed is maintainable in its present form?

II. Whether the plaintiff has valid cause of action for the suit?

III. Whether the suit is bad for non-joinder of necessary parties?

IV. Whether there is unity of title and unity of possession in between the parties to the suit?

V. Whether late A.C. Mandal, common ancestor of the parties died leaving behind six or seven sons?

VI. Whether schedule properties are liable to be partitioned amongst the parties to the suit, if so what would be the exte