JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Rajiva Sharma, learned senior counsel for the appellants and Aishwarya Prakash, learned counsel for the respondent.

2. This second appeal has been filed being aggrieved and dissatisfied with judgment dated 28.03.2009 and decree dated 4.4.2009 passed by the learned Additional District Judge-I, Sahibganj in Title Appeal No. 26 of 2006 setting aside the judgment dated 22.11.2006 and decree dated 28.11.2006 passed by learned Sub- Judge-III, Rajmahal in Title Suit No. 50 of 1994 whereby the learned trial court dismissed the suit with costs.

3. The respondent/plaintiff has instituted suit for declaration of right, title and for confirmation of possession over the suit land mentioned in schedule of the plaint. Plaintiff has further sought a relief for permanent injunction to restrain the defendants from dispossessing him from the suit land and the learned trial court on contest after hearing the parties has dismissed the suit vide judgment dated 22.11.2006. Aggrieved with that the respondent/plaintiff filed Title Appeal No. 26 of 2006 and vide judgment dated 28.03.2009 the learned appellate court has been pleased to allow the appeal. Aggrieved with that the appellant has filed present second appeal.

4. The case of the plaintiff is that the land mentioned in the schedule of the plaint belong to two brothers Gayanath Mandal & Kasinath Mandal both of them are dead. Defendants are sons of Kasinath Mandal. After the death of Gayanath Mandal, his widow Nitto Mosammat filed a title partition suit no. 24/67 in the court of Sub- Judge, Sahibganj claiming her 1/3rd share in the joint property of the above named two brothers. The said suit was decreed on 11.07.1969 by the Sub-judge, Sahibganj. The appeal against the decree was dismissed on 18.03.1974 by the District Judge, Dumka. The second appeal was also dismissed by the Hon’ble Patna High Court on 31.08.1979. Nitto Mosammat filed a petition for final decree in title suit no. 24/67. The matter is pending because the entire record of title suit no. 24/67 is missing from the record room. During the pendency of the final decree Nitto died and her substitution is pending. It is further case of the plaintiff that one Ram Narayan was the advocate of Mossamat Nitto in the Title Suit No. 24/67. Nittu Mosammat transferred the suit land by registered sale deed on 20.11.1979 to Ram Narayan advocate and put him in possession of the same. Further Ram Narayan Advocate gifted the suit land to the plaintiff by registered gift deed dated 3.1.84 and put the plaintiff in possession of the same. The plaintiff filed a mutation petition before C.O. Rajmahal, but the C.O. Rajmahal by his order dated 13.3.1991 in M.C. No. 513/90-91 rejected the prayer on the ground that mutation of the name of defendants has already been made as per gift deed. It is averred that before filing of title suit no. 24/67 Parshuram Mandal grand-father of the defendants made a registered gift of the suit land to the defendants and the names of defendants were duly mutated in Title Suit No. 24/67, the defendants claimed the suit land on the basis of deed of gift, executed by late Parshuram Mandal in favour of defendants, but learned Sub-Judge by his judgment held the gift deeds, void and ordered for partition of the suit properties alongwith others family properties.

It is further case of the plaintiff that during continuance of the final decree proceeding defendants filed Title Suit No. 57/81 in the court of Settlement Officer for declaration that the decree passed by the learned sub-judge in Title Suit No. 24/67 was void and not binding upon them. The learned A.S.O. to whom the suit was transferred held that decree of the learned Sub Judge, Sahibganj no longer is effective as Nitto Mosammat has died as such the learned A.S.O. decreed the suit. It is further contended by the plaintiff that Title Suit No. 37/90 was filed by Ram Narayan and others in the court of Sub-Judge for declaration that the j