The possession of one co-sharer is the possession of all the co-sharers until there is ouster.

Sahai, J.

1. This Bench has been constituted to hear this appeal as some important points of law are involved.

2. This appeal by defendant No. 1, who was the only contesting defendant in the trial Court, arises out of a suit for partition of some lands situated in villages Tutikel and Sokarla in Ranchi District described in Schedule A and some moveable properties described in Schedule B attached to the plaint. The admitted genealogical table of the family is as follows:

Dular Singh

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Bishambhar Singh Nilambar Singh

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Balram Singh Dileshwar Singh

Mt. Birasmani and Mt. Sita Kuer (Plaintiff)

(defendant No. 3) (defendant No. 4)

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Jagarnath Singh Damrudhar Singh

Minor (defendant No. 1)

(defendant No. 2)

I may add that Balram Singh left two daughters also. They are Musammat Domni Kuer and Musammat Baidahi Kuer, defendants Nos. 5 and 6, respectively, in this suit. The parties are Bhogtas by caste.

3 The plaintiffs case is that the parties are governed by the Mitakshara School of Hindu Law, that the suit properties are point ancestral properties, and that Bishambhar and Nilambar separated in status but there was no partition by metes and bounds. The lands described in Schedule A were formerly majhtas and bakasht lands; but, after the zamindari vested, they became raiyati lands of the parties. The plaintiff is entitled to a half share in the Schedules A and B properties on partition.

4. The case of the defendant appellant is that, by custom, the rule of lineal primogeniture prevails in the family, that, by reason of this rule, the eldest brother gets the entire property and becomes the malik whereas the younger brother is merely given khorposh, that Bishambhar succeeded to Dular, and Balram succeeded to Bishambhar, that Balram gave some lands as khorposh grant to the plaintiff, and that the defendant-appellant succeeded to Balram and became the malik. On these grounds, his case is that the plaintiff is not entitled to partition or any share in the suit properties and that his suit is liable to be dismissed.

5. The learned Subordinate Judge, who tried the suit, held that there was no custom of lineal primogeniture in the family, that there was unity of title and possession between the plaintiff and the contesting defendant, that the plaintiff was entitled to a half share in the immoveable properties described in Schedule A but not to any share in the moveable properties described in Schedule B. On these findings, he decreed the suit in part, and directed that the plaintiff would get his half share in Schedule A properties carved out by the appointment of a pleader commissioner.

6. Mr. L.K. Chaudhuri, who has appeared on behalf of the appellant, has urged the following three points:

1. That the rule of lineal primogeniture is the lex loci of Ranchi District, and, therefore, the learned Subordinate Judge ought to have held that this rule prevailed in the family of the parties.

2. That the custom of prevalence of the rule of primogeniture in the family of the parties has been established on the evidence adduced in the case.

3. That defendant No. 1 has been recognised by the State of Bihar under Sec. 6 of the Bihar Land Beforms Act, 1950 (hereinafter to be referred to as the Act), as the raiyat in respect of the lands in suit, and that the plaintiff is not entitled to any share in them. In this connection, he has urged that the authority of the Full Bench decision of this Court in Sukhdeo Das V/s. Kashi Prasad Tewari, 1958 BLJR 559: (AIR 1958 Pat 630) has been shaken by the decisions of the Supreme Couri in Suraj Ahir V/s. Prithinath Singh, 1963 BLJR 1: (AIR 1963 SC 454) and Ram Ran