JUDGMENT : 

Sanjay Kumar Dwivedi, J.

Heard Mr. Amar Kumar Sinha, learned counsel for the appellants and Mr. H.K. Mahato, learned counsel for the respondent nos. 1, 2, 3, 4, 12 and 13, Mr. A.K. Mehta, learned counsel for the respondent nos. 5 to 11 and Mr. Anil Kr. Sinha, learned counsel for the respondent nos. 14, 15 and 16.

2. This second appeal has been preferred against the judgment and decree dated 17.05.2012 (decree signed on 01.06.2012) passed by learned District Judge XII, Ranchi dismissing the Title Appeal No. 140 of 2007 and confirming the final decree dated 02.08.2007 (decree signed on 08.08.2007) passed by the Munsif, Khunti in Partition Suit No. 109 of 1979.

3. The plaintiffs/respondents instituted Title Suit no. 109/79 against the defendants for cancellation of sale deed dated 23.3.1979 executed by plaintiffs in favour of the defendants with respect to the land described in schedule A to the plaint and for partition of half share of the land described in Schedule- B of the plaint and for passing a preliminary decree accordingly and after appointing a survey knowing Pleader Commissioner separate takhta with respect to their half share be prepared and the decree be made final. The said suit was contested by the defendants/ appellants. Defendant No. 3, Lil Mohan Mahto supported the claim of the plaintiffs. The said suit was decreed vide judgment and decree dated 12.2.1983 giving specific finding that while allotting separate takhta by the Pleader Commissioner maximum convenience of both the parties shall be taken into consideration.

4. Aggrieved with the said judgment and decree the some of the defendants preferred First Appeal no. 54 of 1983 before the Hon'ble High Court of Patna in its Ranchi Bench. The said appeal was dismissed on 20.5.1997. Thereafter L.P.A. no. 302 of 1997 was filed before the High Court which was dismissed vide judgment and order dated 17.7.2002.

5. Mr. Amar Kumar Sinha, learned counsel for the appellants submits that the plaintiffs filed a petition on 23.1.2003 in the above suit for appointment of a Pleader Commissioner and a Pleader Commissioner was appointed for carving out separate takhta with respect to half share of the plaintiffs over the suit land. He also submits that in the preliminary decree there was clear direction that in partitioning of land the Pleader Commissioner shall take into consideration the maximum convenience of both the parties concerned. The Pleader Commissioner submitted his report dated 10.4.2005 in the court on 15.4.2005 which was in absence of the defendants/appellants which was accepted by order dated 29.6.2007 and accordingly final decree was prepared on 2.8.2007.

6. Mr. Amar Kumar Sinha, learned counsel for the appellants further submits that the report of the pleader commissioner was accepted without hearing the appellants herein and in that view of the matter that law point for admitting the present second appeal. He also submits that correct valuation has not been assessed by the pleader commissioner that is also law point for admitting the present second appeal. On these grounds, he submits that this second appeal may kindly be admitted.

7. Admittedly, Title Suit no. 109/79 was decreed by judgment and decree dated 12.2.1983. The Title Appeal No. 140 of 2007 prerferred by the appellants/defendants has been dismissed by judgment and decree dated 17.05.2012 (decree signed on 01.06.2012) by learned District Judge XII, Ranchi The First Appeal No. 54 of 1983(a) preferred by the defendants/appellant has been dismissed on 20.05.1997 and thereafter L.P.A. no. 302 of 1997 was filed which was dismissed vide judgment and order dated 17.7.2002.

8. The facts of the case are not in dispute. The Partition Suit No. 109/79 was brought by the plaintiffs/respondents for a preliminary decree of partition regarding half share of the plaintiffs in the suit property as detailed in the schedule of the plaint and also for cancellation of sale deed dated 23.03.1979 executed by the plaintiffs