(1.) THIS appeal at the instance of the plaintiffs -appellant Nos. 1 and 2 has been directed against the impugned Judgment and decree dated 12.12.1989 and 21.12,1989 respectively passed in Title Appeal No. 2 of 1983 by Shri Arun Prabhat Sinha, 1st Subordinate, Gumla whereby and whereunder the said appeal was allowed setting aside the judgment and decree of learned Munsif, Gumla passed in Tide Suit No. 22 of 1979 and the suit of the plaintiffs -appellant was dismissed.
(2.) PLAINTIFFS -appellant No. 1 and 2 along with plaintiff -respondent No. 4 Sushil Lakra had filed Title Suit No, 22 of 1979 for a declaration that decree passed in Partition Suit No. 3 of 1965 for carving out a separate takhata of one -third share of defendant No. 1 is illegal and void and the said decree is not binding upon the plaintiffs and also for a decree for partition of the suit land detailed in the schedule of the plaint by carving out a separate takhata of their one -third share by appointment of a Pleader Commissioner.
(3.) THE case of defendant No, 1 Nicodin Lakra, inter alia is that the suit land was recorded jointly in the survey records of right and there was no metes and bounds partition between the parties to the suit and they are separately cultivating the suit land for the sake of convenience and his father Paulus Oraon filed Partition Suit No. 3 of 1965 for partition of the suit land and the said suit has been decided in full know of all concerned including the plaintiffs and one -third share of Paulus Oraon stands demarcated and separated as per the decree in Partition Suit No. 3 of 1965 and DP was also affected vide Execution Case No. 2 of 1973 and this defendant is in possession thereon accordingly and the said decree is binding upon the parties to the said suit. It is alleged that Amin has riglitly carved out the separate takhata of Paulus Oraon after going upon the suit land and making due enquiry with the knowledge of the parties and there is no illegality therein and the decree passed in Partition Suit No. 3 of 1965 is legal and valid and the same cannot be challenged in the present suit and it is barred by res judicata. It is alleged that the claim of the plaintiff of his separate takhata can be allowed only after excluding the land for which the takhata has been prepared in favour of Paulus Oraon, the father of this defendant as per the final decree in Partition Suit No. 3 of 1965 and it cannot be repartitioned including the land allotted in the takhata of Paulus Oraon aforesaid.