IMPORTANT POINT
A party seeking partition must challenge the validity of prior transactions affecting the property and cannot seek partition of property that has been sold and is in the possession of third parties without seeking appropriate relief against those transactions.

JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Amar Kumar Sinha, learned counsel for the plaintiffs/ appellants.

2. Being aggrieved and dissatisfied with the judgment and decree dated 12.08.2016 (decree signed on 26.08.2016) passed by the learned District Judge-II, Chatra dismissing the Title Appeal No.51 of 2009 and confirming the judgment and decree dated 16.09.2009 (decree signed on 13.10.2009) passed by the learned Subordinate Judge-I, Chatra in Partition Suit No.09 of 1998, the plaintiffs/appellants have preferred this second appeal.

3. Partition Suit No.09 of 1998 was instituted for partition of the lands mentioned in Schedule-C to the plaint, claiming 2/3rd share therein and accordingly, prayer was made for preliminary decree to be passed in favour of the plaintiffs by appointing a survey knowing Pleader Commissioner, a separate takhta of their share be carved out and possession of the same to be delivered to them with costs of the suit.

4. The case of the plaintiffs/appellants before the learned trial Court was as under:

The case of the plaintiffs was that lands described in Schedule 'A' to the plaint are covered under khata no.9, 23, and 29 of village Lipda, P.S. Simaria, District Chatra. It was stated that relationship of plaintiffs with defendants no.1 to 4 will appear from genealogy given in Schedule 'B' to the plaint. It was stated that lands measuring 98.16 acres instead of 108 acres as shown in sale deed was acquired by Srimati Sumitra Devi wife of Rewat Lal Singh and Jasumati Devi @ Yasoda Devi wife of Late Govind Lal Singh by virtue of a registered sale deed dated 11.02.1937 executed by Mostt. Fulo Kueri and Mostt. Kaushlya Kueri. Thereafter the lands covered under Khata no. 26 and 28 which were acquired by Jasumati Devi and Sumitra Devi were jointly sold by Jasumati Devi and Sumitra Devi and as such lands of these two khatas are not included in suit. Some portion of lands of Khata no.29 comprised under Plot no.200, 196 and 67 are also omitted from the suit land because the same were settled to Dar-raiyats.

Further case of plaintiffs was that the lands mentioned in Schedule 'A' to the plaint were originally acquired out of joint family fund as was decided in an earlier title suit no.23/84 filed by these plaintiffs as purchasers from Jasumati Devi against defendant no.1 and his transferees. It was found and observed that there was partition between the heirs of Sumitra Devi and Jasumati Devi and in view of the said observation, lands which fell in exclusive share and possession of Jasumati Devi are given in details in Schedule 'C' to the plaint.

It was stated that a land Ceiling Case No.178 of 1973 was drawn up in the name of Jasumati Devi and final order was passed on 19.01.1976 holding that number of units of the holder of land of Srimati Jasumati Devi being three and each unit are entitled to right up to 45 acres and accordingly proceeding under the Ceiling Case was dropped. It is denied that aforesaid Ceiling Case was instituted by Jasumati Devi nor she was a land holder under Ceiling Ease. further It is denied that it was held in the Ceiling Case that further defendant no.2 was entitled to 45 acres. It was further stated that pleading of defendant no.1 in Title Suit no.23/84 was that he was entitled to 1/3rd share out of 1/2 share of land of Jasumati Devi Kueri. It was further stated that the plaintiffs and defendant no.1 have sold or settled in dar-raiyati some lands of Khata no. 23 and 29 and these Vendees and dar-raiyats are defendants no.5 to 28. It was contended that the interest of transferees members to the parties are liable to be adjusted and apportioned from the share and takhta of plaintiffs and defendants no.1 to 4 but it was further contended that the plaintiffs and defendants 1 to 4 are not bound by transaction made by others. It was further contended that in view of the finding of the court in Title Suit no.23/84 the admitted position is that the plaintiffs as heirs of Jasumati Devi/Kueri are entitle