MUNGESHWAR SAHOO, J.:–This First Appeal has been filed by the defendant No.1 and 2 against the Judgment and Decree dated 26th March, 1977 passed by learned 3rd Addl. Subordinate Judge, Siwan in Title Suit No.12 of 1971/178 of 1975 whereby the Court below decreed the plaintiff respondent’s suit for partition.

2. The plaintiff respondent filed the aforesaid suit claiming partition of his share to the extent of 8 bigha 7 katha 12.5 dhur in Schedule I land and half share in Schedule II land.

3. The plaintiff claimed the aforesaid relief for separate share alleging that Sri Sahay Mahto had two sons, namely, Abhilakh Mahto and Rajai Mahto. Abhilakh Mahto had two sons, Swarup Mahto and Parmeshwar Mahto. The plaintiffs are the sons of Swarup Mahto being the son of Munnilal Singh who was only son of Swarup Mahto. The defendants represented the branch of Parmeshwar Mahto. Rajai Mahto had two sons, Balak Mahto and Uchhant Mahto. Uchhant Mahto had one son Pitambar Mahto. Parmeshwar Mahto had two sons, Ramdeo Singh and Ram Dihal Singh. Ramedeo Singh is defendant No.1 and defendant No.2 is son of defendant No.1 whereas the defendant No.3 to 5 are the maternal grand son of Ram Dihal Singh. The further case is that Ram Dihal Singh died in state of separation from Ramdas Singh in the year 1966 leaving behind his daughters and son who was defendant No.3 to 5. Abhilakh and Rajai Mahto were separate from each other but there was no partition by metes and bound. After death of Abhilakh Mahto, Swaroop Mahto and Parmeshwar Mahto also separated from each other prior to cadastral survey. The two sons of Rajai Mahto were also separate. In spite of separation, the entire lands belonged to Sri Sahay Mahto was in joint possession of the parties. There was only 10 bigha 13 katha 1 dhur land in C.S. khata No.15. After separation, Balak Mahto acquired 1 bigha 9 dhur through settlement. Balak Mahto gifted his share in favour of Pitambar Mahto, i.e., son of Uchhant Mahto. In the land of C.S. khata No.15, Pitambar Mahto had half share and Parmeshwar and Swaroop had half share. This share has been noted in C.S. Khatiyan. Pitambar Mahto died in the life time of Balak Mahto, therefore, the entire share of Rajai Mahto was inherited by Balak Mahto. Thereafter, he gifted his half share in all the lands in favour of Swaroop Mahto. However, in R.S. khatiyan, the share of Swaroop Mahto and Parmeshwar had wrongly been noted. The name of Parmeshwar Mahto had wrongly been noted in R.S. khata No.337. Parmeshwar Mahto had no concern with the gifted land. On 29.11.1956, the defendant No.1 executed two sale deeds in favour of Munnilal Singh, plaintiff No.1. The plaintiff and defendant also sold 5 katha 5 dhur land to Kari Singh. Therefore, this land is not included in this partition suit.

4. The defendant No.1 and 2 filed contesting written statement. Besides taking various legal and ornamental please, mainly contended that Abhilakh Mahto and Rajai Mahto were separate prior to cadastral survey but Parmeshwar Mahto and Ram Swaroop Mahto were joint and they remained joint till 1966. Swaroop @ Ram Swaroop was the karta and after his death, Munnilal Singh, plaintiff No.1 became the karta. Although defendant No.1 is elder to plaintiff No.1. Ram Balak Mahto and Uchhant Mahto were also members of joint Hindu family. Uchhant Mahto died in jointness with Balak Mahto. Balak Mahto never executed gift deed in favour of Pitamabar Mahto. After death of Pitambar, Balak Mahto came in possession of the land of Rajai Mahto. Ram Swaroop Mahto and Parmeshwar Mahto were member of the joint Hindu family and they used to serve Balak Mahto. So Balalk Mahto desired to execute deed of gift of his share in favour of Parmeshwar Mahto and Swarop Mahto. However, Swaroop Mahto was the karta, therefore, he got executed the deed of gift in his name only. After gift deed, both the brothers came in joint possession of the gifted property. The gifted lands were blended in the joint lands. Parmeshwar Mahto died in t

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