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CAV ORDER

11 11-03-2026

1. Heard learned counsel for the appellants.

2. This Second Appeal has been preferred against the judgment and decree dated 23.06.2016 passed by the Learned Additional District Judge-Ist, Nalanda at Biharsharif, in Title Appeal No. 64 of 2006 whereby the lower Appellate Court reversed the judgment and decree dated 23.07.1998 passed by the learned Sub-Judge-II, Hilsa, Nalanda in Title Suit No. 21 of 1991.

3. The appellant herein was the defendant before the learned Trial Court and the respondents herein, were the plaintiffs in Title Suit No. 21 of 1991. The plaintiffs- respondents-1st set filed Title Suit (Partition) for partition of their half share in the suit property and for carving out the aforesaid share by appointing a survey knowing Pleader Commissioner.

4. In order to determine the matter in its perspective, it is necessary to briefly re-state the case of the parties.

5. The defendant-appellant, (the plaintiffs-respondents-1st set) and defendants-respondents-2nd set are the descendants of the common ancestor, namely, Kewal Mahto and are related to each other. The genealogy has been admitted by both the sides. It is also admitted fact that Chhotu Mahto, Srichand Mahto and Ganauri Mahto were full brothers; all being the sons of Kewal Mahto. It is also admitted fact that Ganauri Mahto died unmarried in the year 1982.

6. The case of the plaintiffs is with regard to partition between the three brothers, which took place in the year 1987 only for the sake of convenience in cultivation of the land. After the death of one co-sharer Late Ganauri Mahto, in the state of jointness, his property was inherited by Chhotu Mahto and Srichand Mahto jointly. The chakbandi khatiyan was prepared in the joint name of Chhotu Mahto, Srichand Mahto and Ganauri Mahto. It is further pleaded that after the death of Ganauri Mahto some problems and difficulties were being felt to run the joint family and due to which quarrel started between the plaintiffs and defendant nos. 1 to 4. Subsequently, the plaintiffs asked for partition from the defendants in the year 1987 but they were evading the same. Consequently, both the parties remained in possession of joint property and once, the parties divided themselves and ridge (Daj) was also carved out and in accordance with that, mutation application was filed before the concerned Circle Officer but defendant raised objection resultantly the mutation case was rejected. The application for mutation went up to the court of Additional Collector, Nalanda but from there also, it was dismissed. It is further contended that the plaintiffs again requested the defendant to partition the suit property by metes and bounds but they kept evading, hence, this suit.

7. On summons, defendant nos. 1 to 4 appeared and filed their written statement jointly. Apart from ornamental objection against the pleading of the plaintiffs respondent-1st set, the defendant nos. 1 to 4 pleaded that chak khatiyan was prepared in the name of Chhotu Mahto, Srichand Mahto and Ganauri Mahto, all sons of Kewal Mahto in respect of 5.96 acres land of Village-Gaurav Nagar in Mahal Shankar Dih. Thereafter, partition was held by metes and bounds in the year 1980 in the manner that Chhotu Mahto, Ganauri Mahto remained joint and the plaintiff Srichand Mahto became separate wherein the land of Village-Gaurav Nagar and the land of Mirzapur in respect of 1.87 acres and area of 0.73 ½ acre land of Village-Shankar Dih, total area 2.60 ½ acre was allotted to Srichand Mahto and the remaining area 5.22 ½ acre was allotted to Chhotu Mahto (father of defendant nos. 1 and 4) and Ganauri Mahto. All the co-sharers came in possession of the allotted shares. After partition, Ganauri Mahto died in the year 1982 and Chhotu Mahto came in possession of the share of Ganauri Mahto, who was joint with him. It is further pleaded that after partition the entire land of Village- Mirzapur was sold b