IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.134 of 2003 1. Sri Rajnandan Singh s/o Indar Singh 2. Sri Anil Singh 3. Sri Sunil Singh both sons of Rajnandan Singh 4. Sri Sushil Singh 5. Sri Praveen Singh 6. both minor sons of Rajnandan Singh resident of Village Jagdishpur P.S. Naubatpur Dist. Patna Plaintiffs - Appellants- Appellants Versus 1 Sri Ram Nandan Singh s/o Indar Singh 2. Sri Umakant Singh 3. Sri Ramakant singh 4. Sri Shreekant Singh all sons of Ram Nandan Singh resident of Village Jagdishpur P.S. Naubatpur Dist. Patna 5. (i) Karu Singh (ii) Chameli Devi both resident of Village Jagdishpur P.S. Naubatpur Dist. Patna 6. Smt Lalpari Devi w/o Sri Rajanbari Singh resident of Village Simnhupura P.S. Bihta Dist. Patna 7. (i) Ram Kumar (ii) Ajay Kumar (iii)Sanjay Kumar All sons of Mithlesh Singh resident of Village Dariapur P.S. Naubatpur Dist. Patna 8. Smt Shanti Devi w/o Janak Singh resident of Village Naubatpur P.S. Bihta Dist. Patna 9. Sri Kamlesh Yadav s/o Ram Ekbal Yadav resident of Village Dariapur P.S. Naubatpur Dist. Patna Defendants -Respondents-Respondents ----------------------- For the appellants: Mr Ashutosh Jha, Advocate Mr Radha Mohan Singh, Advocate For respondents: Mr Ajit Kumar, Advocate 1 to 4 and 9 Mr Neeraj Kumar, Advocate ------------------- 17/ 18.01.2010 Heard learned counsel for the appellants and learned counsel for respondent nos. 1 to 4 and 9. 2. This second appeal has been filed by the plaintiffs- appellants-appellants challenging the judgments and decree of the learned courts below. 3. The matter arises out of Title Suit no.548 of 1987 which was filed by the plaintiffs-appellants for partition of their moiety - 2 - share in the suit land described in Schedule II of the plaint and also for other ancillary reliefs. The said suit was merely decreed in part as the plaintiffs’ claim for partition of moiety share was rejected but it was held that in view of acquisition/alienation and execution of deeds of gift of Sundri Devi, Rajeshwar Singh, Rajnarayan Singh and Indar Singh lands measuring 7 decimals each of Rajnarayan Singh & Sundri Devi and land measuring 30 decimal of Indar Singh remained to be partitioned between plaintiffs and defendant no.1 and on that account the plaintiffs were to receive 22 decimal land from defendant no.1 to 4 and out of 22 decimal, 6 decimal land was to be homestead and Gulabo Devi (defendant no.5) was to be maintained by defendant nos.1 to 4 or defendant no.4 was to provide one acre of land to defendant no.5 for her maintenance. The said judgment was passed on contest by the learned Subordinate Judge III, Danapur vide his judgment and decree dated 30.06.1997. 4. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal no.85 of 1997 whereas defendants filed Title Appeal no.90 of 1997. Both the aforesaid title appeals were dismissed by the learned Additional District Judge. VI, Patna, vide his judgment and decree dated 24.04.2003. Against that part of the aforesaid judgment and decree of the learned court of appeal below by which Title Appeal no. 85 of 1997 was dismissed, this second appeal has been filed. 5. Although learned counsel for the appellants vehemently challenges the impugned judgments and decree of the - 3 - learned courts below but from the averments of learned counsel for the parties and materials on record including impugned judgments, it is quite apparent that both the learned courts below have very carefully considered the pleadings and evidence of the parties and only thereafter have decided the suit and appeal. 6. The learned courts below have specifically found that issue nos.3 and 4 framed by the trial court were main issues to be decided which were: iii) Whether the plaintiff is entitled for half share in the suit land shown in schedule II of the plaint? and iv) Whether there is unity of title and possession between the parties in respect of the suit land? 7. In the said circumstance, the main point to be decided was whether there was any previous partition and that whether there was any unity of title and possession between the parties, entitling the plaintiffs to a moiety share in the suit property. 8. Although learned counsel for the appellants submits that there has to be a presumption of jointness with respect to joint family property but the learned court of appeal below has shifted the onus on the plaintiffs to prove jointness. However, from the specific findings of the learned court of appeal below, it is quite apparent that the learned court of appeal below was quite aware that presumption of a Hindu family is of jointness and onus lies upon the person to prove separation who asserts previous partition, but also found that when both the parties had led extensive evidence with respect to previous partition or otherwise, the plea of jointness has to be decided on the basis of - 4 - evidence and not on presumption. 9. The learned courts below have very carefully considered the evidence of the parties and held that the evidence led by the defendants including mortgaged bond exhibit D, the rent receipts exhibit C series as well as various deeds of transfer by individuals with respect to the specific portion of the suit property apart from oral evidence, the defendants had fully discharged their onus whereas the plaintiffs had failed to prove unity of title and possession between the parties over the suit land after admitting separation in mess and cultivation and various deeds of gift and sale on the basis of which mutation was also done in favour of transferees without any objection from any quarter and the said deeds including deed of mortgage was found to have been acted upon which clearly showed that previous partition became effective in the family and thereafter the plaintiffs and the defendants became separate in mess as well as in cultivation and dealing. In the aforesaid circumstances there was no option left for the learned court of appeal below but to hold that there was previous partition between defendants and the plaintiffs and thus claim of the plaintiffs with regard to unity of title and possession was not legal, valid and proper. 10. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil - 5 - Procedure. (S.N.Hussain,J) shahid