The burden of proof on the defendant to establish previous partition and the use of documentary evidence and oral testimonies to determine the existence of partition and exclusive possession.

Mungeshwar Sahoo, J.

The plaintiffs have filed this First Appeal against the Judgment and Decree dated 31.03.1993 passed by Vth Subordinate Judge, Gopalganj in Partition suit No.119 of 1984/26 of 1991 whereby the learned trial Court has dismissed the plaintiff appellant's suit for partition.

2. The plaintiffs appellants filed aforesaid partition suit praying for separation of his share measuring 10 katha 16 ½ dhur out of Schedule I land and 1A share in Schedule II land (hereinafter referred to as 'suit land').

3. The plaintiff claimed the aforesaid relief alleging that Somari Sah had four sons, namely, Ramdhari Shah, Lakhan Sah, Jhapas Sah and Laxman Sah. The son of Ramdhari Sah, namely, Mukhlal Sah is defendant No.1 and the sons of Jhapas Sah are the plaintiff. Laxman Sah and Lakhan Sah both died leaving behind only one daughter each who are defendant No.2 and defendant No.3 respectively. The defendant No.5 to 8 are daughters of Ramdhari Sah. All the four brothers have died. Defendant No.4 is a purchaser from Lakhan Sah. There had been no partition between the parties and they are still joint. However, they cultivate the lands according to their convenient.

4. The further case of the plaintiff is that Somari Sah had 18 katha 11 dhur kasht land and 1 katha 2 dhurs homestead land which are the suit land. Lakhan Sah sold 3 katha 1% dhur to defendant No.4 out of his own share and remaining 1 katha 11 dhurs was sold by defendant No.3 to the plaintiff and defendant No.2 sold his entire share under Schedule I to the plaintiff. Taking undue advantage of weakness of the plaintiff, the defendant No.1 is constructing his house without there being any partition. Hence the suit was filed.

5. Only defendant No.1 filed contesting written statement, whereas defendant No.2 and 3 filed separate written statement supporting the plaintiff's case. Therefore, the main contesting defendant is defendant No.1. His main defence is that there is no unity of title and possession. Somari Sah had two wives and Ramdhari Sah was born from his first wife and the rest three sons were born from his second wife. A partition took place by metes and bonds between the four sons of Somari Sah on 15.06.1960 and Schedule II land was allotted to the share of Jhapas Sah, Ram Lakhan Sah and Laxman Sah only. Ramdhari Sah did not get any share in Schedule II. In Schedule I land 9 katha 5 1/2 dhur in the west was allotted to the share of Ramdhari and remaining 9 kahta 5 ½ dhur in the east was allotted to rest three brothers and two koras were prepared and both the parties signed on it and the Punches also signed. Since this partition, the parties are coming in separate possession of their respective shares. Ramdhari Sah had constructed his own house on plot No.327. Therefore, the Punches did not allot him any share in Schedule II.

6. On the basis of the aforesaid pleadings of the parties, the learned trial Court framed the following issues :-

(i) Is the suit as framed maintainable?

(ii) Have plaintiffs got any cause of action for the suit?

(iii) Is there unity of title and possession in between the parties?

(iv) Is the court fee paid sufficient?

(v) Is the suit is bad for partial partition?

(vi) Is the story of previous partition as alleged by defendant No.1 correct?

(vii) Are plaintiffs entitled to the relief, claimed for?

7. After hearing the parties and on the basis of evidences and materials available on record, the learned trial Court recorded clear finding that there had been complete partition between the parties and accordingly dismissed the plaintiff's suit.

8. The learned counsel for the appellant submitted that the learned trial Court mis-appreciated the evidences of the plaintiff and recorded wrong finding. Moreover, the trial Court recorded finding that partition took in or about 1935 which is not the case of any party. According to the learned counsel, the defendants nowhere pleaded in the written statement that when and in what manner, the partition took place bu