JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Bhaiya Vishwajeet Kumar assisted by Mr. Ranjeet Kumar, learned counsel for the appellants and Mr. Atanu Banerjee assisted by Mr. Satish Kumar, learned counsel for the respondents.

2. This second appeal has been preferred being dissatisfied with the decree sealed and signed on 18.02.2003 on the basis of the judgment dated 27.01.2003 in Partition Appeal No. 16 of 1997 by the learned Additional District and Sessions Judge, Fast Track Court No. II, Palamau at Daltonganj affirming the decree sealed and signed on 02.04.1997 on the basis of the judgment dated 15.03.1997 in Partition Suit No. 41 of 1989 by the learned Sub-Judge No. 2, Daltonganj.

3. The appellants/plaintiffs instituted suit for partition to the extent of 1/5th share of the plaintiffs, cost of the suit and another reliefs deemed fit and proper. The said suit was decided by the learned Sub-Judge No. 2, Daltonganj vide judgment dated 15.03.1997 and he has been pleased to dismiss the suit. Against that judgment, the appellants/plaintiffs moved before the learned appellate court in Partition Appeal No. 16/1997, which was decided vide judgment dated 27.01.2003 dismissing the appeal and affirming the judgment passed by the learned trial court. Aggrieved with that, the appellants/plaintiffs have preferred the present second appeal.

4. It appears from the judgments of the learned trial court as well as the appellate court that the appellants/plaintiffs instituted the suit stating therein that Khata no. 91, Khebat No. 1/19 and Khata no. 93 and 126 under Khebat no. 13 of village Golana, P.S. Patan was recorded in the name of one Bigan Mahto, son of Ganga Mahto. The said Bigan Mahto had four Pai share in these Khatas, out of four Pai share Bigan Mahto sold two Pai share to one Ram Mahal Dubey and one Pai ten Karant share was also purchased by said Ram Mahal Dubey in a Court auction. Therefore Ram Mahal Dubey became owner of three Pai ten Karant share in Khebat no. 1/19 and remaining ten Karant share belonged to the Khebatdar Bigan Mahto. Ram Mahal Dubey had five sons namely 1. Kail @ Parmeshwar Dubey 2. Adhar Dubey. 3. Sarwan Dubey. 4. Kauleshwar Dubey 5. Kanchan Dubey. When Ram Mahal Dubey died in year 1956 his interest was jointly inherited by two sons Kail @ Paremeshwar Dubey and Adhar Dubey surviving that time, and grand sons of the three branches (three sons of Sarwan Dubey, one son of Kauleshwar Dubey and one son of Kanchan Dubey). Therefore, after the death of Ram Mahal Dubey each branch of his five sons succeeded and inherited to the extent of 1/5 th share. It was further stated that one son of Ram Mahal Dubey sold his 1/5 th share in favour of plaintiffs vide registered sale deed dated 02.09.1960 and since then plaintiffs are in joint possession of the land with the other co-tenants and are getting Usufruct according to their share and also are paying rent. The defendants no. 1 to 4 also purchased 2/3rd share of Adhar Dubey and Bhola Dubey, son of Kanchan Dubey vide sale deed dated 14.9.1960. The defendant no. 6 and the rather of defendant no. 8 to 11 also purchased 1/5th share of Sarwan Dubey's branch vide sale deed dated 01.09.1960 executed by three sons of Sarwan Dubey namely Law Dubey, Dinesh Dubey and Brij Bihari Dubey. Defendant no. 17 purchased 1/5th share of Kauleshwar Dubey through a sale deed dated 12.07.1960 executed by Jugeshwar Dubey the son of Kauleshwar Dubey.

5. The genealogical table of Ram Mahal Dubey is being given below-

6. There has been transferred and re-transferred of the suit property falling under the shares of other successors. It was asserted in the plaint that the pu