IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.405 of 2009 Utim Mahto & Ors. Versus Kunno Mahto ----------- 05. 17.11.2011 I.A.No.6870/2011. This interlocutory application has been filed for substitution of deceased appellant nos.1 & 11 in this appeal who are stated to have died on 11.04.2010 and 19.05.2010 respectively leaving behind their heirs and legal representatives as mentioned in paragraph nos. 1 and 2 of the application. Further, the I.A.No.6869/2011 & I.A.No. 6871/2011 have also been filed for condonation of delay and setting aside abatement respectively explaining the cause for not filing the substitution petition in time. It has been stated in the petition that two sons of the appellant no.1, are already on record of this appeal and the substitution is to be done only by bringing the daughters of deceased appellantno.1 on record. With regard to appellant no.11, it has been stated that he died issueless leaving behind his widow alone as his heir and legal representative. From the averments made in the limitation petition as well as in the petition for setting 2 aside abatement and also after considering the submissions of the learned counsel, it appears that genuine reasons have been assigned for not taking steps for substitution earlier within the prescribed period. As such , the delay in filing the petition for substitution is condoned and the abatement of the appeal, with regard to appellant no.11, is set aside. Consequently I.A.No.6869/2011 and 6871/2011 are allowed subject to any objection which may be raised by the respondents after their appearance or at the time of hearing of this appeal. As a result, the prayer for substitution as made in I.A.No.6870/2011 is also allowed and the remaining heirs of the deceased appellant no.1 and the sole heir of the deceased appellant no.11 as mentioned in the substitution petition are substituted in their place after expunging the names of the deceased appellant nos.1 & 11 from the records of this appeal. The substituted heirs have already appeared in this appeal by filing Vaklatnama. Heard the learned counsel appearing on behalf of the appellants in support of this appeal. It has been submitted that the ancestor of the plaintiff namely Amrit Mahto had been allotted the suit property by way of ‘Jethans’ by the father and this fact is fully supported by 3 the entry of his name in survey khatian in the remark column showing his possession over the suit land. It has also been contended that the trial court has rightly decreed the suit upholding the claim of the plaintiff on the basis of ‘Jethans’ but the appellate court below, by wrongly interpreting the principle of Hindu law and ignoring the effect of survey entry has reversed the judgment of the trial court. The plaintiffs, who are aggrieved by the judgment and decree of the appellate court reversing the judgment and decree in their favour by the trial court, have preferred this second appeal. The suit was filed for declaration that the plaintiffs are absolute and exclusive owners of the suit land having their perfect right and title over the same from the time of their common ancestor, Amrit Mahto and the defendants have got no concern with the suit property. It appears that the suit land having area of 3.05 acres had been recorded in C.S.Plot No.1559(details mentioned in the schedule of the plaint)in the name of Mohan Mahto who was common ancestor. It is not in dispute that the common ancestor, Mohan Mahto, had got four sons out of whom the descendants of Amrit 4 Mahto(one of the sons)are the plaintiffs in the suit and the purchaser from the descendants of Sauki Mahto(one of the sons) is the defendant claiming to have purchased the suit land alongwith other land from Mallu Mahto S/o Sauki Mahto. The plaintiffs have based their claim on the ground that the suit land had been given to their predecessor, Amrit Mahto, as ‘Jethans’ being the eldest son, by his father, Mohan Mahto and thereafter Amrit Mahto came in exclusive possession of the same and after his death his descendants (plaintiffs) are in possession of the suit land. Per contra, the defendant has resisted the claim of the plaintiffs on the ground that the suit land was never given to Amrit Mahto as ‘Jethans’ by his father rather all the descendants of their common ancestor Mohan Mahto remained in possession of the suit land as their joint property. It is the case of the defendant that he has validly acquired title over the suit land by purchase from Malu Mahto, son of Sauki Mahto by registered sale deed dated 16.10.1974. The trial court after considering the evidence, pleadings and submissions of the parties, has decreed the suit. However, in appeal the appellate court has reversed 5 the findings of the trial court and allowed the appeal by the defendant. The appellate court has come to the conclusion that there is no concept of ‘Jethans’ in Hindu Law particularly when no case of partition has been pleaded by the plaintiffs. After considering the evidence on record, the appellate court has also held that in view of presumption in Hindu Law regarding jointness, unless the partition is pleaded and established, the right as claimed by the plaintiff in the suit land cannot be upheld. The mention of the possession of Amrit Mahto over the suit land in the remark column of the survey entry, which has been the main plank of the case of the plaintiffs, has been rightly discarded by the appellate court as not sufficient to establish partition in the family, in view of the principle laid down by this Court in a decision reported in 1997 BBCJ 575. There appears to be no infirmity in the conclusion of the appellate court that the descendants of Amrit Mahto have got no exclusive right, title and possession over the suit land on basis of their claim of ‘Jethans’ and survey entry. During the course of submission, nothing could be shown to establish that the 6 findings by appellate court are perverse. There is no substantial question of law arising for consideration in this appeal, which is accordingly, dismissed. Nitesh ( V. Nath, J.)