JUDGMENT :

Heard the learned counsel for the appellant.

2. No one turns up on behalf of the respondents in-spite of repeated calls though notices have validly been served upon the respondents. Hence, this appeal is heard ex-parte against the respondents.

3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the concurrent judgment and decree dated 14.02.2007 passed by the learned Additional District Judge, F.T.C.- III, Dhanbad in Title Appeal No.10 of 2005 whereby and where under, the learned first appellate court has dismissed the appeal and did not interfere with the judgment and decree passed by the learned trial court being the court of Sub-Ordinate Judge-IV, Dhanbad in Title Suit No.112 of 2001.

4. The case of the plaintiff in brief is that the defendants purchased 1.13 acres of land consisting of 10 plots from the previous rightful successor and recorded owner namely Kartik Rajwar and Badal Rajwar both sons of Babulal Rajwar. After purchase, the defendant no.1 mutually divided the lands according to the share among the three brothers namely Tarapada, Debendra and Sudhir Chandra and each got 37 ½ decimals of land each. One of the brothers Debendra Chandra Aash sold 19 decimals of land out of his share to Ajit Kumar Dutta by registered sale deed and delivered possession of land to him. Subsequently, Debendra Chandra Aash sold his remaining share out of the land to Bablu Bouri on a reasonable consideration by a registered sale deed. Later Ajit Kumar Dutta also sold 19 decimals of land purchased from Debendra Chandra Aash to Bablu Bouri by registered sale deed. Bablu Bouri thus become the rightful owner and came in possession of the said land by virtue of the said two sale deeds executed in his favour and acquired permanent and indefeasible right by prescription upon 37 ½ decimals of land because of being in continuous and peaceful possession of the same by virtue of sale deeds. Bablu Bouri while thus in possession of the said land sold 31 decimals of land described in Schedule II of the plaint to the plaintiff by sale deed no.2059 dated 03.04.1998 for a consideration of Rs.15,000/- and delivered possession of the land to the plaintiff. Sudhir Chandra Aash, the younger brother of the defendant no.1 died leaving behind the defendant no.2 as his only legal representative and successor. As the defendants did not allow the plaintiff to construct the shop on the suit land, the suit was filed with the following prayers:

(a) for decree of permanent injunction against the defendant and in favour of the plaintiff restraining the defendants to come upon the suit land and to cause any obstruction to the plaintiff in the construction of a new room on the said suit land; and

(b) Cost of the suit.

5. The defendants on the written statement besides contesting the suit being not maintainable on various technical grounds further pleaded that there was no partition between the brothers and the defendant no.1. The defendants further pleaded the since the description of the land and the sale deed in question is vague, hence they denied that the vendor Babulal ever possessed 37 ½ decimals of land and in the absence of any partition between the defendant no.1 and his brothers, the possession of the brother cannot be adverse. The defendants denied the possession of the plaintiff or his vendor of the suit land and pleaded that the claim of the possession of the plaintiff and his vendor over the suit land is mere pretense and the suit is barred under the provision of the Specific Relief Act.

6. On the basis of rival submissions of the parties, the following four issues were framed by the learned trial court:-

(i) Whether the suit is maintainable?

(ii) Whether the plaintiff has any cause of action?

(iii) Whether there has been a partition between the three brothers and the defendant no.1?

(iv) Whether the plaintiff is entitled to reliefs prayed for?

7. Learned trial court first took up issue no. iii and after considering