IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12923 of 2010 1. ARUN KUMAR JAISWAL. 2. Anant Kumar jaiswal. 3. Basant Kumar Jaiswal. 1 to 3 sons of Late Kamta Prasad Jaiswal All residents of village Raja Bazaar Bichhiya (Baghwali Kothi), P.O.+P.S –Bihiyan, District- Bhojpur. 4. Nirmal kumar jaiswal, son of Later Kamta Prasad Jaiswal, resident of village Raja Bazar Bazar Bichhiya (Baghwali Kothi), P.O. +P.S.- District-Bjojpur. 5. Pankaj Kumar, son of late Kamta Prasad Jaiswal, resident of village bazaar Bichhiya (Baghwali Kothi), P.O. +P.S.-Bihiyan, Dist- Bhojpur. …………. Petitioners. Versus 1. KRISHNA BIHAR JAISWAL. 2. Vijay Kumar Jaiswal . 1 to 2 sons of Late Uday Chand Lal Both resident of Sadar Road ward no. 3. P.O.+ P.S_Forbesganju, Dist-Araria. 3. Om Prakash Jaiswal, son of Krishna bihar jaiswal, reswident of sadar road ward no. 3 P.O. +P.S –Forbesganj, Dist-Araria. 4. Nand Gopal Jaiswal, son of Krishna Bihar Jaisw 5. Ashok Kumar jaiswal, son of Krishna Bihari Jaiswal . Both resident of Sadar Road Ward No. 3 P.O.+P.S-Forbesganj, Dist-Araria. 6. Ramesh Kumar Jaiswal. 7. Manoj Kumar Jaiswal. 8. Madan Gopal Jaiswal. 9. Shiv Gopal Jaiswal. 10. Ghanshyam jaiswal. 11. Mintu Jaiswal 12. Rupesh Kumar Jaiswal. 13. Munna Kumar jaiswal. 6 to 13 sons of Vijay Kumar Jaiswal and residents of Sadar Road Ward No. P.O+P.S Forbesganj, Dist-Araria. 14 Uma Shankar Chaudhary, son of Late Parmanand Chaudhary, resident of Mohalla- Gorhihar (Lakadi Ara Mill), P.O.-Forbesganj, Dist-Araria. 15.Dhiraj Chaudhari, son of late Parmanand Chaudhary, resident of village+PostThakurganj Bazar (Cinema Hal Malik Ke Phuphera Bhai), P.S.-Thakurganj, Dist-Kishanganj. 16. Jai Prakash Chaudhary, son of late Parmanand Chaudhary, resident of village +Post –Pasraha, Dist-Khagaria. 17.Manorma Devi, wife of late Gurudeo Prasad Jaiswal. 18. Ramesh Kumar jaiswal. 19. Rajesh Kumar Jaiswal. 2 20. Rakesh Kumar Jaiswal. 21. Rashmi Kumari Jaiswal 22 Smt. Rinku Devi Jaiswal. 18 to 22 S/O Late Gurudeo Prasad Jaiswal and resident of village-Bara Shiv Mandir Road ward nbo. 8 p.S.+Post –Forbesganj, Dist-Araria. 23. Awadhesh kumar Jaiswal, son of Late Rama Prasad, resident ofg Village+Post Dildarnagar bazaar P.S.-Dildarnagar, Dist-Gajipur. 24. Musmat raj Kumari devi, W/o Late Ram Pyare Jaiswal, resident of village Matigarhha, P.O._Matigarhha, Dist Darjiling W.B. 25. Musmat Kamla Devi w/O Late virendra Kumar Chaudhar C/O Bablu Jaiswal, resident of village=post-Maheshpur, P.S.+Dist Supaul. 26. Smt. Pushpa Jaiswal, wife of Shri Shashi Kant Chaudhary, resident of Flat no. 32 (Professional Flat), P.s._Kadwa Bisthupur, Dist- Jamshedupur (Jharkhand). 27 Mahesh Prasad Jaiswal. 28 Mahadeo Prasad Jaiswal. 29 Mahananad Jaiswal 30 Gauari Shankar jaiswal. 31. Draupadi Devi,. W/O Late Umesh Prasad Jaiswal C/O Gopal Prasad, Jaiswal, resident of Chhoti Chowk Mahnar, Post+P.S.-Mahnar, Dist-Vaishali. 32. Manju Jaiswal, D/O Late Yamuna Prasad Jaiswal, wife of Shri Chandra Narayan Jaiswal, resident of Mohalla-Sarahi, ward No. 8 Post +PS. And Dist-Saharsa. 33. Smt. Geeta Jaiswal wife of Shri Badam Jaiswal, resident of Mohalla-Fareej Gauda, kishanganj ward No. 9 P.O+P.S &Dist- Kishanganj. 34. Smt. Veena Devi D/O Late Yamuna Prasad Jaiswal, wife of Pravin Kumar Bhagat , M/S Bhagat Trading (Lalji School Ke Smne, Village- Hasanpur, Post=P.S.-Raniganj, Dist-Araria. 35. Smt. Kiran devi D/O Late Yamuna Prasad Jaiswal wife of Shri Upanjan Chaudhari, resident of mohalla-Hariyagachhi, Saharsa. Ward No. 32 P.O+P.S and Dist-Saharsa. 36. Smt. Bhagirathi Devi D/O Late Yamuna Prasad Jaiswal, wife of Shri Dilip Bhagat. 37. Ram Pyari Devio@Shyam Pyari Devi W/O late Yamuna Prasad Jaiswal. 36 and 37 are residents of Mohalla-Bara Shiv andir Ropad, Forbesganj, Post+P.S-Forbesganj, Dist-Araria. 38. Vashudeo Prasad Jaiswal, son of Maksuidan Chaudhari (Uncle Ramdhari Chaudhary) resident of village-pnatrualiya, P.O+P.S Madhubani Thar, P.s.-Motihari Muffasil, Dist-East Champaran. 39. Rama nand Yadav. 40 Awadhesh Kumar Yadav. 41. Ramani Yadav. 42.Shyamanand Yadav 39 to 42 sons of Late Akal Yadav and residents of village +Post – Deviganj, P.s.-Narpatganj, Vaya-Narpatganj, Dist-Araria. 3 43. Chandrama Yadav, son of late Dhorha yadav, resident of village- Saheb Tola Bihiyan, Post+P.S-Bihiyan, Dist – Bhojpur. 44. Ranvijay Singh,. Son of Ramchandra Singh, resident of Puyrani Bhatti, Golapar, Post-Danapur, P.S.-Danapur, Dist Patna. ………… Respondents. ----------- 7 10.11.2010 Heard learned counsel for the petitioner and learned counsel for the respondent No. 1. 2. This writ petition has been filed by plaintiffs-petitioners challenging order dated 21.7.2010 by which Subordinate Judge-IV Ara (Bhojpur), rejected the application filed by the plaintiffs- petitioners under Order XVIII Rule 1 for an order directing the defendants - respondents to adduce their evidence in Title Suit No. 379 of 2001. 3. The aforesaid suit was filed by the petitioners for partition of their 1/4th share in the suit property and for other ancillary reliefs. The defendants -respondents filed their written statement, whereafter issues had been framed and evidences were to be laid. In the mean time, the plaintiff-petitioners filed the aforesaid application under Order-XVIII Rule-1 of the Code of Civil Procedure on 23.6.2010 which has been rejected by the learned court below vide its impugned order dated 21.7.2010 (Annexure-5) 4. From the facts and circumstances of the case as well as the materials on record and the arguments raised by the learned counsel for the parties it is quite apparent that the suit was filed by the plaintiffs- petitioners simply for partition and injunction, whereas the defendants claimed that there was a previous partition of the year 4 1929. It was further claimed by the defendants that in Title Suit No. 27 of 1946 a compromise petition was filed by the parties. 5. It further transpires that the said Title Suit No. 27 of 1946 was dismissed for default on 14.01.1952 without passing any order in compromise matter, hence, the said compromise petition filed by the parties in the suit has no legal effect and cannot be held to be binding on any of the parties . It further transpires that the defendants had also claimed that some lands were included in the plaint of the instant suit (Title Suit No. 379 of 2001) which were purchased after 1929 and even after 1946. In the said circumstances it was appropriate for the plaintiffs to lead the evidence to prove the essential ingredients necessary for deciding a suit for partition. Hence, this Court does not find any illegality in the impugned order of the learned Court below and accordingly this writ petition is dismissed. However, any observation made in this order shall not affect the claim of the parties one way or the other at the time of the final decision of the suit. Prakash ( S.N. Hussain, J.)