JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Kundan Kumar Ambastha, learned counsel for the appellants and Mr. Sudhir Kr. Sharma, learned counsel for the respondent no. 1.

2. Though, the second appeal has not been admitted as yet however, Mr. Sudhir Kr. Sharma, learned counsel appeared on behalf of the respondent no. 1 suo motu.

3. This second appeal has been filed being aggrieved and dissatisfied with judgment dated 10th September, 2012 (decree signed on 28.09.12) passed by the learned Principal District Judge, Chatra in Title Appeal No. 20 of 2011 whereby the learned trial court has been pleased to allow the appeal preferred by the respondent/plaintiff against the judgment dated 29.08.2011 (decree signed on 12.09.2011) passed by the learned Munsif, Chatra in Title Suit No. 06/2003 whereby the suit of the plaintiffs and counter claim of the defendant no. 4 has been dismissed.

4. Title Suit No. 06 of 2003 was instituted by the respondent/plaintiff for declaration of right, title and confirmation of possession over the suit land described in schedule A of the plaint. Further prayer was made for permanent injunction, cost of the suit and any other relief.

5. Defendant nos. 4 to 6 have counter claim the suit land and they have brought suit for declaration of right, title, interest of defendant nos. 4 to 5 as well as for delivery of possession over the suit land, cost of the suit and any other relied.

6. The learned trial court after framing of the issues and considering the argument has been pleased to dismiss the suit vide judgment dated 29.08.2011. Aggrieved with that respondent/plaintiff preferred title appeal which was numbered as Title Appeal No. 20 of 2011 and vide judgment dated 10.09.2012 the said appeal was allowed by the learned Principal District Judge, Chatra. Aggrieved with that the appellant/defendant nos. 1 to 3 have filed the present second appeal.

7. The fact of the suit as dictated in judgments of the courts is that grand mother of plaintiff namely, Bibi Saibun acquired 24 decimals of land under plot no. 49, khata no. 165 under Bihar Privilege Persons Homestead Tenancy Act in PUrcha Case No. 51/74-75 situated at village Ghorighat P.S. Pratapur District Chatra described in Schedule A. Grandmother came in possession mutated their name, got rent receipt. She constructed house, shop towards road side in eastern portion for residential and erected boundary wall. After death of son and husband of Saibun plaintiff was living with grandmother Bibi Saibun rendered services. She having no other legal heirs and successor. After death of Bibi Saibun plaintiff came and remain in possession over schedule-A land. Again she got purcha for the same land vide purcha Case No. 03/93-94, as such plaintiff came in possession over Schedule A land. Her name was mutated she is getting rent receipt.

It is further case of the plaintiff that grand mother out of her free will executed a gift deed in favour of plaintiff on 13.05.1983. Land of plot no. 496, khata no. 165 area 24 decimals of village Ghorighat P.S. Pratappur, District Chatra and plaintiff came in possession with its boundary which was previously bounded as North Mahadeo Sao, South Bari, East Road, West Dhankhet, thereafter land of Faiju Rahman and boundary as Eastern side of plot no. 496 and present boundary North Jagarnath Sao, South Road, East Harshnat Babu, West Jagarnath Halwai of Plot No. 496 khata no. 165 and during lapse of time alleged road which was situated towards Eastern side turned towards South of plot no. 496 and on which grand mother has right, title and possession. Boundary of gift deed no. 2576 dated 13.05.1983 was wrongly scribed due to mistake of scriber is schedule B of the plaint.

It is further alleged that plaintiff sold eastern portion of plot no. 496 out of gifted land to defendant no. 1 to 6 by three registered sale deed dated 22.09.1989 which she got from Bibi Saibun by registered gift deed which Bibi Saibun inherited the same from her husband with certain