The presumption of jointness in a Hindu family can be rebutted by evidence of separate possession, mess, residence and cultivating possession for a long time.

1. - This First Appeal arises out of a judgment and decree dated 30/09/1978 passed by Shri V. Topno, Subordinate Judge, Chaibasa in Title (Partition) Suit No. 12 of 1977, whereby and whereunder, the said learned court decreed the plaintiff-respondents suit.

2. The facts of the case lie in a very narrow compass.

3. The plaintiffs filed the aforementioned suit claiming, inter alia, half share in the properties described in Schedule B of the plaint.

4. For appreciating the case of the parties, it is necessary to look into the genealogical table.

5. The genealogy is not disputed. According to the plaintiffs-respondents, they had been in joint possession of the lands in question along with the defendants and their share being half in respect of the properties in suit, they are entitled to the said share and obtain a decree for partition.

6. According to the defendants, all the lands described in Schedule B of the plaint were not the ancestral lands of the parties. The defendants contention was that the lands which were described in Schedule appended at the foot of the written statement were acquired by Suku and Bono which took place more than seventy years ago.

7. For the purpose of disposal of this appeal, other facts are not relevant to and as such are not required to be noticed as the facts of the case have been dealt with in detail in the impugned judgment.

8. The learned trial court framed as many as nine issues in the aforementioned suit which are as follows:

"(i) Have the plaintiffs any cause of action or right to sue? (ii) Is the suit barred by limitation? (iii) Is the suit barred by the principles of estoppel, waiver and acquiscence? (iv) Is the suit as framed maintainable? (v) Is there unity of title and possession of the parties in respect of the suit properties? (vi) Are all the lands in schedule B ancestral lands of the parties? (vii) Was there any partition between Suku and Bano in respect of the lands in suit? (viii) Was there ouster of Bono and / or his descendants from the lands over which Suku was and thereafter his descendants are in possession? (ix) To what relief or reliefs, if any, are the plaintiffs entitled?"

9. The learned trial court took up all the relevant issues, namely, issue Nos. 5, 6, 7 and 8 together and came to the conclusion that there having been no partition by metes and bounds, the plaintiffs are entitled to a decree for partition.

10. Mr. Bhaiya Yogendra Kishore, the learned counsel appearing on behalf of the appellants raised a short question.

11. According to the learned counsel not only the defendants witnesses categorically stated about the partition but the said fact was also admitted by the witnesses examined on behalf of the plaintiffs-respondents.

12. From the judgment of the learned trial court itself, it appears that the plaintiffs admitted that the parties are separate in mess and cultivation. These facts were also proved from the survey khatian Exhibits C and C/ 1 wherein the separate possession of the parties were noticed.

13. It may be mentioned here that Exhibit C is a khatian in respect of Cadestral survey settlement operatation, which took place in the year 1911.

14. It further appears that by reason of Exhibit A, a sale-deed, plaintiffs Jadu Bhuiya and Lakhan Bhuiya sold the lands covered by the said sale deed to Ramchandra. It appears that the defendants called for the original sale deeds from the plaintiffs but in spite thereof the same was not produced. In that view of the matter, the certified copy was filed and proved.

15. Mr. N.K. Prasad, learned counsel appearing on behalf of the respondents, however, submitted that the aforementioned sale deed was a forged document which allegedly has been admitted by P.W. 1 in paragraph 20 of his deposition.

16. However, from a perusal of the evidence of P.W. 1 in its entirety it is evident that the said witness did not state that it was a forged document and as such he mended (sic) to be a document which was not binding upon