JUDGMENT :

1. Heard the learned counsel for the appellants.

2. This second appeal has been filed against and being dissatisfied of the judgment and decree dated 25.02.2009 passed by the learned 2nd Additional District Judge, Hazaribagh in Title Appeal No.32 of 2004 affirming the judgment dated 29.01.2004 and the decree dated 09.02.2004 passed by learned Sub Judge –III, Hazaribagh in Partition Suit No.86 of 1995.

3. The Partition Suit No.86 of 1995 was instituted by the plaintiff/respondents for a decree for partition with respect of suit land described in scheduled “B” of the plaint and separate khata to carve out to each of the plaintiffs and defendants. On contest the learned court has decreed the suit holding that the plaintiffs are entitled for ½ share in the scheduled “B” land of the plaint and there is unity of title and possession in between the parties in respect of the suit land and the plaintiffs were entitled for decree for partition and that is why the decree was prepared.

4. Aggrieved with that, the appellant/defendants filed the Title Appeal No.32 of 2004 and by the judgment dated 29.1.2004 the learned appellate court has been pleased to affirm the judgment and the decree of the learned trial court and has been pleased to dismissed the appeal. Aggrieved with that, the appellant/defendants have filed the present second appeal.

5. Learned counsel appearing for the appellants submits that there is no unity of title and possession and the learned trial court and the learned appellate court have erred in holding that there is unity between the parties. He further submits that there was no earlier partition and the learned trial court and the learned appellate court have further erred in law and the finding of that earlier partition is erroneous by the learned trial court as well as the learned appellate court. On these grounds, he submits that there is substantial question of law is involved in this second appeal and it may kindly be admitted.

6. The case of the plaintiffs/respondents in the lower court is that both parties are agnets and their relationships will be clear from the genealogical table given at the foot of the plaint. The lands of khata no.26 of Baitha Toli, Barlong, P.S. Ramgarh district Hazaribag were recorded in the names of late Jibha Mahto and Langra Mahto, sons of late Bikram Mehto in the survey record of rights and it was the joint property of both the parties. Lands of khata no. 17 of village-Barlong (Baitha toli) P.S. Ramgarh district Hazaribag were recorded in the names of late Gondal Mahto son of late Bikram Mahto, who died issueless after the last cadastral survey and settlement operation. These lands are also the joint property of the both parties. The parties are coming in peacefully possession over the lands of khata no.17 and 26 and they have been paying rents to the State government. It is the further case of the plaintiffs that after Deepawali in the year 1995 when the plaintiffs went to harvest paddy crops from the lands, the defendants created disturbance and they wanted to harvest the paddy crops. Cause of action arose in the month of October, 1995 when the defendants wanted to harvest paddy crops forcibly from the suit lands The suit has been valued at above Rs.50000/- but the suit being partition suit a court fee of Rs.39.00 has been paid. The plaintiffs claim for half share and it has been prayed that their share be carved out by Takhtabandi by appointing a pleader commissioner.

7. On the other hand, the case of the defendants/appellants is that the suit, as framed is not maintainable. The suit is barred by law of limitation, estoppel and acquiescence. The suit is also barred by nonjoinder of necessary party. There is no cause of action and the value of suit as given by the plaintiff is also not sufficient. It has further been alleged that the genealogy as given by the plaintiffs is not complete. It is the specific case of the defendants that it is true that the lands of khata no.26 was