Mungeshwar Sahoo, J. – The defendants have filed this First Appeal against the judgment and decree dated 8th April, 2009 passed by Sri Shyam Kishore Jha, the learned Subordinate Judge IV, Jehanabad in Partition Suit No.147 of 2003/169 of 2005 decreeing the plaintiff-respondent’s suit to the extent of his half share.

2. The plaintiff-respondent, Kamaldeo Prasad filed the aforesaid partition suit claiming half share in the Schedule-III property of the plaint. The plaintiff claimed the said relief alleging that Bahadur Prasad was the father of plaintiff and defendant no.1. The defendant nos.2 to 4 are the sons of defendant no.1. Said Bahadur Prasad died leaving behind his widow, Dhanmatiya Devi and two minor sons namely, Rajdeo Prasad, defendant no.1 and Kamaldeo Prasad, plaintiff. After the death of Bahadur Prasad, his widow shifted from her matrimonial village to her naihar village, Dharampur. After attaining majority, the defendant no.1 became the karta of the joint family. The mother Dhanmatiya Devi had sufficient money which she collected from selling the property at her matrimonial village and she purchased lands in village Dharampur. The plaintiff was an employee in Postal Department and he used to give his entire income to the defendant no.1 who was karta. The defendant no.1 purchased many properties in the name of members of joint family. The details of the joint family property have been mentioned in Schedule-I of the plaint. Out of the said Schedule-I property, Dhanmatiya gifted 1.54 acres i.e. Schedule-II of the plaint in favour of Ajay Kumar, the son of plaintiff and Prabhat Kumar, the son of defendant no.1 by registered gift deed dated 2.7.1983. The said property is not the subject matter of the suit. Schedule-III property is remaining land excluding Schedule-II from Schedule-I land. There were some differences between the females and, therefore, the parties separated in mess. The defendant no.1 gave some land to the plaintiff for the purpose of separate cultivation and for the sake of convenience but there had been no partition by metes and bounds. The plaintiff demanded partition and on refusal filed the partition suit.

3. The defendants appeared and filed a contesting written statement alleging that Dhanmatiya Devi had no source of income. She had acquired the property in the year 1938 to 1947 out of the income of defendant no.1. The mother had nothing to purchase any land because she shifted to Dharampur for the safety of her children. The defendant no.1 was in service under the Zamindar and out of his income, he acquired 1.44 acres by settlement on 30.5.1943 from Mahanth Dwarika Das. He also purchased many properties through sale deeds out of his own income in his name. After abolition of Zamindari, he was appointed in the Govt. service and in the year 1958, he acquired properties out of his own income. The defendant no.1 with defendant no.3 and plaintiff had also purchased lands in the year 1961 and in the year 1965 which has been detailed in paragraph 17 of the written statement. Before the year 1977, he had already sold 1.65 acres of land to different persons through various registered sale deeds. Plot No.160 measuring about 64 decimals was acquired through registered sale deeds dated 11.4.1967 and 21.8.1969 in the name of plaintiff and defendant no.1. In the year 1973, there was exchange with Fagu Mahto through registered deed of exchange dated 26.6.1973. The defendant no.1 acquired the property in the year 1947 in the name of his mother. There was exchange of the land in between the mother and plaintiff and defendant no.1 in the year 1974. The allegation of plaintiff that he was paying his income to defendant no.1 is denied. The property which was gifted to Ajay and Prabhat by Dhanmatiya has been divided half and half between them. The plaintiff and defendant no.1 are living separately since after the plaintiff came in service. There was oral partition regarding the self-acquired property of defendant no.1 a