JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Ayush Aditya, learned counsel for the appellants.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 20.04.2012 and decree signed on 08.05.2012 by the learned District Judge-II, Palamau at Daltonganj in Partition Appeal No. 34/2006, dismissing the appeal and thereby confirming the judgment dated 31.08.2006 and decree signed on 21.09.2006 passed by the learned Subordinate Judge-II, Palamau at Daltonganj in Partition Suit No. 69 of 1973.

3. Partition Suit No. 69 of 1973 was instituted by the plaintiffs/respondents for partition between the parties, which was decreed in favour of the plaintiffs vide order dated 31.08.2006 and against that judgment, Partition Appeal No. 34 of 2006 was filed by the defendants/appellants, which was also dismissed vide judgment dated 20.04.2012 and the judgment passed by the learned trial court was confirmed.

4. The case of the plaintiffs/respondents was that Pandey Jivrakhan Ram and Nanhaku Ram had been allotted a separate Takhta of 1 Anna 4 Pai share in a P.S. No. 19/1916 by the court of the learned Subordinate Judge, Palamau. The two brothers above mentioned were impleaded defendant nos. 32 and 33 in the said P.S. having equal share, which was for partition of land in respect of village Pandu, Jhagra, Sikiya, Basdiha Labar Pandu and Gagankeri. It was also averred in the plaint that the plaintiff's father Late Galuki Mahto purchased 2 Pai share in village Pandu, Basdiha, Jhagra and 4 Pai share in village Labar Pandu through a registered sale deed dated 26.01.1925 from Pandey Jivrakhan for a valuable consideration. It was also averred that Saluki Mahto came in possession over the land, so purchased by him and remained in possession in jointness till he was alive and on his death, the plaintiffs have been carrying on in joint possession, with the other defendants. It was further averred that parties of the suit have already been disposed of the property of village Basdiha. Hence, the lands of the village Basdiha have been left from the suit. after vesting of the Zamindari interest in the State of Bihar, under the B.L.R. Act, the plaintiffs and other set off the defendants have submitted return and K form separately for the convenience, but the rent was fixed at random. The plaintiffs and the defendants have been cultivating the land separately for convenience, but, since there is no partition by metes and bounds, the parties are feeling difficulties in improving the lands. The plaintiffs have demanded partition amicably, but the defendants did not agree. Therefore, the suit was filed. It was also averred in the plaint that the plaintiffs have 1/8th share in village Pandu and Jhugra and 1/4th share in village Labar Pandu and cause of action in the suit has been shown to arose on different dates.

5. The joint written statement was filed on behalf of defendant no. 2 and defendant no. 10 on 18.04.1978 stating therein that the suit is not maintainable and there was no valid cause of action for the suit. The plaintiffs were not in possession over the suit land. There is no unity of title and unity of possession. The suit is under valued and the valuation of the suit property is not below Rs. 50,000/- at the market rate. In the written statement, it was also pleaded that the suit is barred by Sections 8 and 35 of Bihar Land Reforms Act, 1950. It was also averred that Sarad Chand Sarkar has filed T.S. No. 19/1916 before the Deputy Commissioner cum Spl. Judge, Palamau against Prakash Chand Sarkar and others for partition of suit land of village Labar Pandu, Sikiya, Jhagra, Mahugawa, Karandih and Basdiha and partition decree was also passed. The plaintiff has wrongly pleaded that their ancestors Saluki Mahto have obtained 2 Pai share in Mauza Pandu, Basdiha and Jhagra and 4 Pai share in village Labar Pandu through registered sale deed dated 26.01.1925. The execution of deed was created with malafide intention. Saluki Mahto never