Appeal from Original Decree No.47 OF 1974 Against the Judgment and decree dated 29.11.1973 passed by Shri S.L.Nandkeoliyar, Sub- Judge,Hajipur, in Partition suit No.54 of 1970 / 291 of 1973. --- 1.Kaushal Kishore Choudhary 2.Kedar Nath Choudhary 3.Sunil Kumar Tiwary 4. Mahadeo Thakur S/o Bansi Thakur. 5.Amar Kant Thakur S/o Bansi Thakur. 6.Shambhu Thakur S/o Late Mahang thakur. 7.Most. Asharfi Devi W/o Late Mahang Thakur. 8.Raj Kumari D/o Late Mahang Thakur. 9.Naginder Thakur S/o Late Mahang Thakur. 10.Ashok Thakur S/o Late Mahang Thakur. 11.Sunita Kumari @ Raj Kumari Devi W/o Late Ramesh Thakur. 12.Vikash Kumar S/o Late Ramesh Thakur. 13.Saroj Devi @ Chanda Devi D/o Late Ramesh Thakur. All residents of Village- Bishunpur Basant @ Subhai Tola, Jamalpur, P.S. Hajipur, District.- Vaishali. Defendants / Appellants. Versus 1.Pratima Devi W/o Late Ram Pravesh Thakur. 2.Sanjay Kumar S/o Ram Pravesh Thakur. 3.Saroj Kumari D/o Late Ram Pravesh Thakur 4.Yogendri Devo D/o Late Ram Pravesh Thakur. 5.Harihar Thakur S/o Vishwanath Thakur. 6. Garbhu Thakur @ Garmu Thakur S/o Jagdish Thakur. 7.Ramjanam thakur S/o Garbhu Thakur 8.Most.Sunita Thakur @ Devi W/o Late Surinder Thakur 9.Rajesh Thakur S/o Late Surinder Thakur. All are residents of Village- Bishunpur Basant @ Subhai Tola, Jamalpur, P.S. Hajipur, District-Vaishali. Plaintiffs / Respondents. For the appellants: Mr.Rajendra Kishore Prasad, Mr.Suresh Chandra Pd.Sinha, Mr.Rohit Kishore Prasad. For the respondents: Mr.Pashupati Prasad Sinha, Mr.Mahesh Prasad II 2 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO M. Sahoo,J. This appeal is directed against the Judgment and decree dated 29.11.1973 passed by Sri S.L. Nandkeoliyar, Sub-Judge, Hajipur, in Partition Suit No.54 of 1970 / 291 of 1973 decreeing the plaintiffs’ suit for partition to the extent of ½ share. 2. The plaintiffs-respondents filed the aforesaid partition suit claiming ½ share in the suit land measuring 5 bighas, 16 kathas and 12 dhoors comprised in Khatas No.37, 382 and 469 of Village- Bishunour Basant, Hajipur. 3. The plaintiffs’ claimed the aforesaid relief on the facts, inter alia, that Ram Sahai Thakur had three sons, namely, Dringpal Thakur, Karan Thakur and Jaipal Thakur. The two sons of Dringpal, i.e. Banke Thakur and Baldeo Thakur died issueless during the life time of their father leaving behind only widow of Baldeo Thakur, namely, Most. Fuljhari Devi. The plaintiffs are the descendants of Jaipal Thakur whereas the defendants are the descendants of Karan Thakur. The further case of the plaintiff is that Dringpal Thakur was separate from his father and brothers since before cadastral survey. The other two brothers , i.e., Karan Thakur and Jaipal Thakur who were joint. The lands of Khata No.37,382 and 469 were recorded separately in the name of Dringpal Thakur. He died 50 years ago and, therefore, Most. Fuljhari Devi was entitled only for maintenance but Karan Thakur and Jaipal Thakur 3 allowed Most. Fuljhari Devi to remain in possession of the property of Dringpal Thakur in lieu of maintenance. They were only paying the rents. Subsequently, the holdings were split up ½ and ½ and started paying rent separately to the extent of ½ and ½. Fuljhari Devi died 15 years ago and her property came in joint possession of the plaintiffs and defendants. There had been no partition between the parties regarding this property. 4. On the other hand, defendants no.1 to 5 filed a contesting written statement contending that the suit is hit under section 109 of B.T.Act. All the averment of the plaint was admitted by them. They also admitted that Fuljhari was allowed to possess the suit land in lieu of her maintenance. 5. The main defence of these defendants is that Fuljhari Devi died 15 years ago and after her death the parties partitioned land in the month of Baisakh 1947 AD and in that partition the properties described in Schedule-I to the written statement was allotted to the plaintiffs and the properties described in Schedule-II to the written statement were allotted to the defendants. Thereafter jamabandi was split up and mutation was done separately. According to the defendants’ case they have grown up orchard and bamboo clumps and because of that the plaintiffs with greedy eyes filed this suit. 5. Considering the above pleadings of the parties the learned court below framed as many as six issues and thereafter considering the oral evidence available on record came to the 4 conclusion that the evidence on record does not satisfactorily proved the previous partition of the suit and, therefore, the plaintiffs are entitled to a decree for partition to the extent of ½ share and decreed the suit. 6. The learned counsel for the appellants submitted that the learned court below has not properly appreciated the evidence adduced by the defendants – appellants which proved that there had been partitioned of the suit properties between them and, therefore, the learned court below has wrongly decreed the suit. The learned counsel further submitted that the jamabandi was separate and the parties are paying rent separately which shows that there had been partition between them. Therefore, the finding of the learned court below is unsustainable. 7. On the other hand, the learned counsel appearing on behalf of the respondents submitted that it is the admitted case of the parties that the suit land was in possession of Fuljhari Devi and after her death it came in joint possession. The only difference is that according to the plaintiffs there was no partition by metes and bounds whereas according to the defendants there had been partition. Therefore, partition cannot be reopened . The learned counsel further submitted that the parties had adduced only oral evidence in support of their respective case. Further submission is that since the finding of the learned court below is based on oral evidence although this Court is first appellate court will not reverse the finding of fact arrived by the learned court below unless it is 5 shown that while arriving the said finding the learned court below has not considered vital part of the evidence of any witness and had he considered that vital part of the evidence the finding would have been otherwise. In support of his contention the learned counsel relied upon a decision reported in A.I.R. 1983 S.C. 114. 8. From the above contentions of the parties it appears that only point arises in this appeal for decision is as to whether there had been previous partition as alleged by the defendants or whether the parties are joint as alleged by the plaintiff. 9. It is the admitted case of the parties that the properties in suit was in possession of the widow, Fuljhari Devi. After her death they came in joint possession. It is also admitted fact that the parties have ½ - ½ share in the said property. So far the date of the death of Fuljhari Devi is concerned it has got no relevancy for decision in this appeal. It is admitted fact that there is no document showing previsous partition of the suit land. The documentary evidence adduced by the defendants are Ext.-A series and Ext.B are the endorsement on affidavit and the affidavit which has been filed in support of the written statement. Ext.-C series are the rent receipts for the year 1962 –1963, 1968 – 1969, 1958 – 1959 with respect to 1 bigha, 15 kathas and 10 ½ dhoors. From perusal of these rent receipts it does not appear that those are related to the suit land. Moreover, the rent receipts are without prejudice. It is also well settled principle of law that rent receipts are not evidence of partition. The rent receipt granted by the Ex-land lord Ext.C/4 also 6 does not bear khata number and khesra number. Ext. D series are purchas.Ext.-E is khatian and Ext.-F/4 is the survey map. According to the defendants before the survey authority the plaintiffs admitted the fact of the previous partition and, therefore, their names were separately recorded. It may be mentioned here that the revenue records neither create title nor extinguishe title on the immovable property. Only because the parties were separately cultivating the lands and those lands have been recorded separately it cannot be said that there had been partition by metes and bounds between them. 10. The plaintiffs have filed Ext.3, survey copy of khatian to show that valuable lands have been allotted to the defendants. Dhanhar chaur lands were allotted to the plaintiffs. The plaintiffs contended that the said schedule given in written statement is, therefore, inequitable. Therefore, from the discussion of the documentary evidence as stated above are not sufficient to prove previous partition. It only shows that the parties were cultivating the suit land according to their convenience. 11. So far the oral evidences are concerned, except D.Ws. 4,5 and 10 the other witnesses examined on behalf of the defendants are formal. The evidence of D.Ws.4,5 and 10 have been discussed at length by the learned court below from paragraph no.20 onwards. The evidence adduced on behalf of the plaintiffs have been discussed from paragraph no.20 onwards. From perusal of the impugned Judgment it appears that the learned court below has 7 discussed in great details about the oral evidence. At the time of hearing the learned counsel appearing on behalf of the appellants could not be able to point out as to what material statement of any particular witness has not been considered by the court below. In a decision reported in A.I.R. 1983 S.C. 114 ( Madhusudan Das vrs. Smt. Narayani Bai and others ) the Hon’ble Supreme Court has held that: “ In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of ob- serving the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court.” 8 12. In this present case as stated above admitted position is that the parties are entitled to ½ - ½ share. After considering the oral evidence the learned court below gave a categorical finding disbelieving the case of defendants of previous partition. According to the plaintiffs they were cultivating the lands separately according to their convenience. In a decision reported in 1999 (1) P.L.J.R. 199 (Deoki Mallah vrs. Surji Mallahain and ors.) this Court has held that:- “Separate mess and separate cultivation do not mean that there was partition by metes and bounds. Notings of kabjawari in the revenue records do Not prove separation or partition which only gives analogy that there was separate cultivation or possession by the person in favour of whom kabza- wari has been recorded.” 13. In view of the above facts and circumstances of the case, in my considered opinion, I come to the conclusion that the defendants have failed to prove that there had been previous partition by metes and bounds with regard to the suit property. Therefore, in my opinion, the learned court below has rightly decreed the plaintiffs’ suit holding that there was no previous partition. The finding of the learned court below is, therefore, confirmed. 9 14. In the result, I find no merit in this first appeal and, accordingly, this first appeal is dismissed. There shall be no order as to cost. The Patna High Court. The 5th April,2010. AnilKr.Sinha/N.A.F.R. (Mungeshwar Sahoo)