Khatim Reza, J. – This Second Appeal is directed against the judgment and decree dated 21.02.2011 passed in Title Appeal No. 60 of 2010 by the learned Additional District & Sessions Judge, F.T.C-3rd, Banka, whereby the learned appellate court below has allowed the appeal filed by the defendants/respondents and set aside the judgment and decree dated 20.05.2010 passed by Sub-Judge-1, Banka in Title Suit No. 22 of 1997 and reversed the judgment and decree passed by the learned trial court.

2. In the present Second Appeal, the following substantial question of law has been formulated for determination: –

“whether the appellate court below has given the correct interpretation of the documents of Ekrarnama (Exhibit-7) and the deed of usufructuary mortgage (Exhibit-2) in order to come to the conclusion that there had been partition by metes and bounds between the parties with regard to the suit properties?"

3. The suit in question was filed alleging that the plaintiffs and the defendants are the descendants of common ancestor, namely, Mahipal Bhagat, who had five sons. Mahipal Bhagat died in jointness with his son Patiram Bhagat, who had one son, namely, Sini Ram Bhagat. Both the parties belong to the branch of Sini Ram Bhagat. Sini Ram Bhagat had two wives. From the first wife, there was one son, namely, Mahadev Bhagat and from the second wife, there was one son, namely, Jagdish Bhagat.

4. Original plaintiffs were representing the branch of Jagdish Bhagat and the defendants were representing the branch of Mahadev Bhagat. It is further case of the plaintiffs that in the year 1929, amicably oral family partition was held between Patiram Bhagat and Sini Ram Bhagat and in that partition, Patiram Bhagat got 1.47 acres of land out of Schedule-I land and remaining 1.47 acres of land went to the share of Sini Ram Bhagat. Both the brothers of Sini Ram Bhagat got the land allotted to his father in the said family partition. The land which fell to the share of Sini Ram Bhagat is the subject matter of partition and fully described in Schedule-II item No. 1 of the plaint which is the suit land.

5. It is further case of the plaintiffs that Sini Ram Bhagat died in the estate of jointness with his two sons namely, Mahadev Bhagat and Jagdish Bhagat in or about the year 1938 and both the sons jointly inherited the suit land and came in exclusive possession of the same. It is further case that the entire property was left by their father, namely, Sini Ram Bhagat and moveable and immoveable property were partitioned between them except the suit land and both the branch divided in status only and the suit land as said remained joint even after the death of Mahadev Bhagat, who died more than 25 years ago leaving behind his four sons and grandsons, who are parties to the suit. As there was disturbance in the joint family, entire property was partitioned between them in the year 1942 except the suit land. Although a separate Jamabandi was created in the name of Mahadev Bhagat and wife of Jagdish Bhagat, but as a matter of fact, the suit land was never partitioned by metes and bounds and since the partition of 1942, the branch of plaintiffs and branch of Mahadev Bhagat were joint with respect to the suit land. It is further case of the plaintiffs that at the stage of survey and consolidation operation, the authorities illegally inserted and in collusion with the defendants got carved the suit land in several new plots which is indicated in Schedule-II Item 2 of the plaint and this was done by the defendant 1st and 2nd parties only to jeopardize the legitimate interest of the plaintiffs. It is pleaded that separation of Jamabandi for the suit land is apparently illegal and separate Jamabandi in the name of defendant 3rd party i.e. wife of Jagdish Bhagat is illegal on the very face of it as she is not entitled for any share in view of the fact that the suit land was the ancestral property of the plaintiffs, defendant 1st and defendant 2nd party. However, defenda