JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Ayush Aditya, learned counsel for the appellants and Mrs. Manjushri Patra, learned counsel for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with judgment and decree dated 19. 04.2006 (decree signed on 29.04.2006) passed by the learned District Judge, Latehar in Partition Appeal No. 16 of 2003 affirming the judgment and decree dated 30.09.1997 (decree signed on 10.11.1997) passed by the learned Sub Judge, Latehar in Partition Suit no. 4 of 1992.

3. The appellants/plaintiffs have instituted Partition Suit No. 4 of 1992 for getting a decree of partition in respect of the suit land particularly described in Schedule ‘A’ situated in Mauja Jilanga and village Mansingha for 1/4th interest in favour of himself and 1/4th share in favour of plaintiff no. 4 Jitu Mahto by carving out a separate Takhta in their favour. The said suit on contest was decided by the learned Sub Judge-I vide judgment dated 30.09.1997 in which he has been pleased to dismiss the suit thereafter the appellants/plaintiffs filed Partition Appeal No. 16 of 2003 and by judgment dated 19.04.2006 the learned appellate court dismissed the said appeal affirming the judgment of the learned trial court. Aggrieved with that the present appeal was filed by the plaintiffs/appellants.

4. The case of the plaintiffs in brief is that the parties to the suit are the descendant of common ancestor Barju Mahto who died much before the cadastral survey of the year 1917-18 leaving behind his five sons who had constituted a Hindu co-parcenary family. The genealogical table is given in para 2 of the appellate court judgment. The further case of the plaintiff is that the land belonging to Khata No. 36.51 were originally belonged to Barju Mahto but after his death prior to cadastral survey were recorded by the survey authorities in terms of possession of the members of the co-parcenary who were in possession for the sake of convenience accordingly the raiyat land of Khata no. 36 measuring 9.30 acres of village Jilanga was recorded in the name of Baudha Mahto and Basli Mahto, Khata No. 51 measuring area 7.15 acres in village Jilanga was prepared in the name of Lajhan Mahto, Andu Mahto and Pchu Mahto and Khata no. 31 of village Mansinga was prepared in the name of Lajhan, Pachu, Andu, Bhikhu, Jagwa and Situa measuring 2.35 acres. These lands were within P.S. Balumath, District palamau now (Latehar). The lands discussed in three khatas are the subject matter of the suit. The further more case of the plaintiff is that out of five sons of Birju Mahto, one son Basli @ bastawa died soon after the cadastral survey i.e in or about in year 1920. Thereafter Baudha Mahto died after two years and then Lajhan, Andu, Pachu, they all died in the estate of their jointness with their respective brothers. Jagwa Mahto @ Jago Mahto died issueless while Bhikhu Mahto died in or about in year 1968 leaving a son Sahdeo Mahto and a daughter Budhani Devi, Sahdeo Mahto also died in or about 1972 leaving behind his widow Chando Devi the defendant no. 4 and a son Sukhdeo Mahto defendant no. 1 and two daughters who are defendant no. 2 and 3. Plaintiff nos. 2 and 3 are the grand sons of Lajhan Mahto and Plaintiff nos. 4 and 5 are descendant of Andu Mahto while the plaintiff no. 1 now deceased and his legal heirs is on record was the son of Pachu Mahto. It is further averred by the plaintiff that since Basli Mahto had died near about the year 1920 so his daughter Phakali Devi did not inherit any interest. Setua Mahto died in State of jointness with the descendants of other four branches before the year 1939 so his interest by survivorship developed on the other four branches the descendants of Baudha, Lejhan, Andu and Pachu have got equal interest i.e. the plaintiff no. 1 has got ¼ interest. Plaintiff no. 2 and 3 got ¼ interest and the plaintiff no. 4 and 5 have got 1/4th interest and the remaining 1/4th interest belonged to the defendant