IN THE HIGH COURT OF JUDICATURE AT PATNA

Second Appeal No.482 of 2008

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1. Gurudeo Mandal son of Late Brahamdeo Mandal

2. Mosamat Jitan Devi wife of Late Brahamdeo Mandal

3. Laxmi Mandal son of Charitra Mandal

4. Kishroe Mandal son of Charitra Mandal, all residents of Village-

Singheshwar Tola, Nawagarhi Sub Registry-Pargana, District Munger

... ... Plaintiffs-Appellants

Versus

1. Sukurdeo Mandal son of Late Biranchi Mandal @ Biro Mandal

2. Rohit Mandal

3. Sachin Mandal

4. Bidya Mandal

5. Gautam Mandal, all sons of Sukurdeo Mandal, residents of Village

Singheshwar Tola, Nawagarhi, Sub Registry-Pargana, District Munger

... ... Defendants-Respondents

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Appearance :

For the Appellant/s

:

Mr. M.Nasrul Huda Khan

Md. Naushaduzzoha

For the Respondent/s

:

Mr.

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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN

SINGH

ORAL JUDGMENT AND ORDER

Date : 10-08-2018

The appellants have put to challenge the judgment and

decree dated 12.08.2008, passed by the learned Additional

District and Sessions Judge, Fast Track Court (F.T.C.I), Munger

in Title Appeal No. 01 of 2005, whereby the judgment and

decree dated 04.12.2004, passed by the learned Sub-Judge-I,

Munger in Title Suit No. 03 of 1995 has been affirmed. By the

said judgment dated 04.12.2004, the learned Sub Judge-I,

Munger had dismissed the suit of the plaintiffs-appellants,

seeking decree of partition of their half share in the suit land

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appertaining to Khata No. 274, Plot No. 1420, 1421 and 1422

having corresponding Jamabandi No. 936, admeasuring 31 ½

decimals, equivalent to 11 katha 13 dhur, situate at Mouza

Nawagarhi, P.S. Muffasil in the district of Munger. They had

also sought for carving out of their half share of the suit

property through the appointment of a survey knowing Pleader

Commissioner, for the preparation of the final decree in the suit.

2. The case of the plaintiffs, in brief, in the plaint was that

one Ram Tahal Mahton, son of Late Harangi Mahton, was the

common ancestor of the plaintiffs and the defendants, who had

acquired the suit property. Ram Tahal Mahton had raised a mud-

tiled house over an area of 05 katha 15 dhur of land out of the

suit land and was living in the said house with the family

members who died leaving behind him his only son, namely,

Saudagar Mandal and grandsons Bhuso Mandal and Biranchi

Mandal. After the death of Ram Tahal Mahton, the said Bhuso

Mandal and Biranchi Mandal came in possession in jointness

over the ancestral property and they became the joint owner of

the suit property. Bhuso Mandal was the karta of the family,

whereas Biranchi Mandal had nothing to do with the affairs of

the family. Whereas Bhuso Mandal spent a considerable amount

of money for both the families, Biranchi Mandal cleverly sold

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certain area of the suit property. Bhuso Mandal had two sons,

namely,Brahamdeo Mandal and Charitar Mandal. The son of

Brahamdeo Mandal, Gurudeo Mandal, mother of Gurudeo

Mandal Mostt. Jittan Devi, sons of Charitar Mandal, namely,

Luxmi Mandal, Kishore Mandal and Mahender Mandal were

the plaintiffs in the suit and the heirs of Biranchi Mandal were

impleaded defendants. They claimed half share in 31 ½

decimals of the suit property over which there was residential

house, according to the plaintiffs, of both the parties. The

defendants appeared in the suit and while admitting that Ram

Tahal Mahton was the common ancestor of both the parties who

had acquired the suit property, disputed the claim of the partition

raised in the plaint on the ground that the partition in the family

had already t