IN THE HIGH COURT OF JUDICATURE AT PATNA

Second Appeal No.500 of 2010

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1. Jagdeo Yadav

2. (a) Polia Devi, widow of A-2

(B) Anil Yadav

© Dinesh Kumar both sons of A-1. All resident of village Maura, Tala-

Jharkaha, District- Madhepura.

3. Asheshwar Yadav, sons of Late Shanti Yadav

4. Saro Devi widow of Late Bisheshwar Yadav

5. Rupesh Kumar son of Late Bisheshwar Yadav Nos. 1 to 5 residents of

village- Moura, Tola Jharkha Police station Singheshwar now Shankarpur,

District- Madhepura.

6. Nilam Devi wife of Kameshwar Yadav No.6 is resident of village-

Mahnlia, P.O. Mahanlia, police station Jadia, District- Supaul.

7. Rajendra Yadav, son of Lakshman Yadav

8. Chunni Kumari daughter of village Moura, Tola Jharkaha Police station

Singhapour now Shankarpur, District- Madhepura.

Defendants/Respondents.... .... Appellant/s

Versus

1. Upendra Yadav.

2. Mahendra Yadav

3. Arun Yadav

Sons of Achhe Yadav. All residents of village Moura Tola Jhakaha,

Police Station Singheshwar now Shankarpur, District- Madhepura.ON

Plaintiffs/Appellants.... .... Respondent/s

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Appearance :

For the Appellant/s : Mr. Nijmul Hoda

For the Respondent/s : Mr.

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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR

SAHOO

ORAL ORDER

Patna High Court SA No.500 of 2010 (6) dt.27-11-2013

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27-11-2013

Heard learned counsel Mr. Najimul Hoda, appearing

on behalf of the appellants under order 41 Rule 11 of the Code of

Civil procedure.

2. This Second Appeal has been filed by the defendants

against the judgment and decree dated 2.8.2010 passed by the

learned District Judge, Madhepura in T.A. No. 18 of 2004

whereby the learned lower appellate Court allowed the appeal and

reversed the judgment and decree of the Trial Court dated

30.7.2004 passed by the learned Munsif, Madhepura in Title Suit

No. 85 of 1996.

3. The plaintiffs-respondent had filed the aforesaid suit

for declaration of title and possession over the suit land,

mentioned in Scheduled –II of the plaint alleging that the suit

property with others property was the ancestral property of the

parties. Bahadur Gope had four sons namely, Mohan Gope, Hitlal

Gope, Bhailal Gope and Bachhi Gope. The plaintiffs are great

grand son of Bacchi Gope whereas the defendants are great grand

son of Mohan Gope. There had already been partition between the

parties in the year 1974-1975 and in the said partition the suit

property fell to share of the plaintiffs, but in the Revisional Survey

Record of Right, the suit property has wrongly been recorded in

the name of defendants.

Patna High Court SA No.500 of 2010 (6) dt.27-11-2013

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4. The defendants–appellants appeared and filed

contesting written statement alleging that in fact the parties are

joint and still today, there is no partition between them. The

parties are cultivating the land separately according to their

convenience. The suit is barred by law of limitation and further the

suit is barred for non joinder of the parties. The plaintiffs are not

entitled for declaration of title because the defendants have also

share in the suit property.

5. The trial court recorded the finding that the entry

has been made in the name of the defendants in the Revisional

Survey Record of Right in the year 1974-75 and the partition suit

has been filed in the year 1996, therefore, the plaintiffs’ suit is

barred by law of limitation. The Trial Court also recorded the

finding that there had been no partition between the parties. The

Trial Court also recorded the finding that four daughters of

Laxman Yadav are necessary parties, who have not been made

defendants in the suit therefore, the suit is b