Naukran lands granted on the condition of service to the Ruling Chief are impartible and governed by the rule of primogeniture, and the onus of proving that such lands are partible lies on the party claiming partition.

Mahapatra, J.

1. This is an appeal by defendant No. 1 in a partition suit in which the plaintiffs claimed that each one of them had one-fourth share in the properties given in the schedules of the plaint. They admitted that defendant No. 1 was entitled to one such share also. Plaintiffs 1 to 3 are the full brothers and plaintiff No. 4 is their mother. Defendant No. 1 is the step brother of plaintiffs 1 to 3 from the first wife of their father,

2. The plaintiffs case is, that the immoveable properties described in Schedules B, C and D came to the exclusive share of their father, Raghunath, in a partition with his brothers, and these properties remained in his possession till his death in 1949. Thereafter disputes arose between the parties, and the plaintiffs wanted to partition the family properties out, as the defendant No. 1 did not agree to that, they were forced to bring the suit. The other defendants originally impleaded as pro forma defendants represented the branches, of the four brothers of Raghunaths father. They were subsequently expunged as admittedly they had no interest in the litigation. The common ancestor Baidyanath Mahanti, left five sons of whom Brojmohan was the eldest. Brojmohan had tour sons of whom Raghunath, the plaintitls father, was the eldest. Schedule F of the plaint described the moveable properties with which we are not concerned in this appeal. Schedule E was subsequently omitted, and, therefore, that is no longer the subject of dispute.

3. The main defence pleaded by the present defendant appellant was that Baidyanath, the great grand-father of plaintiffs 1 to 3 and the defendant, got the suit properties mentioned in Schedules B(i), C and D as Chakran lands on the express condition that he would attend upon the Ruling Chief, and that, according to the custom prevalent in the State as well as in the family, the rule of primogeniture prevailed in regard to the suit properties, and the eldest son performs the service of the Ruler and enjoys the lands. After Baidyanath, his eldest son Brojmohan came in possession of the properties and, after Brojmohan, Raghunath, father of plaintiffs 1 to 3 and the defendant, succeeded to the properties as the Chakrandar and remained in enjoyment of the same. In regard to the items of the property given in Schedules B(ii) and B (iii), the defendant claimed that they were his exclusive properties as he had acquired the same by reclamation by his own labour after he had separated from his father.

4. On these pleadings, six issues were framed in which issue No. 3 was whether the propertied in Schedules B(i), C and D were Chakran properties and whether they exclusively belonged to defendant No. 1 as such. The issue raised about the other properties mentioned in Schedule B is no longer necessary to be considered as the appellant before vis has given up his claim as exclusive properties to them. They would, therefore, be liable to partition as prayed "for by the plaintiffs. The present appeal is only confined to item No. (i) of Schedule B and items (i) and (ii) of Schedule D lands.

The property described in Schedule C of the plaint was also given up during the argument on behalf of the appellant. Thus the plaintiffs claim of partition in regard to items (ii) and (iii) of Schedule B and items (i) and (ii) of Schedule C is to be allowed as prayed for. The only contest is now about Schedule D and Schedule B(i) properties, and it is to be decided whether these lands are impartible in nature, and whether defendant No. 1 is alone entitled to the same to the exclusion of the plaintiffs according to the custom prevalent in the state and in the family, as pleaded by the defendant.

5. The learned Subordinate Judge of Chaibasa, before whom the suit came for trial, decreed the plaintiffs suit holding that the properties mentioned in Schedules B, C and D were ancestral properties of the parties to the suit, liable to partition. He did not accept the defence plea that Raghunath o