JUDGMENT

Sanjay K. Agrawal, J. - This second appeal preferred by the appellants / plaintiffs was admitted for hearing by formulating the following substantial question of law: -

"Whether both the Courts below were justified in dismissing the suit holding that the suit property has not fallen in the share of original plaintiff-Itwaruram in the earlier partition during life-time of Jiharam?"

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.)

2. The suit property was originally held by Jiharam. He had four sons namely Chainu, Chain, Aaytu and Itwaruram. Itwaruram was the plaintiff before the trial Court who died during the pendency of suit and defendant No.1 is the widow of Chain, whereas, defendant No.2 is daughter of Aaytu and defendant No.3 is daughter of Chainu. The plaintiff filed suit for declaration of title stating inter alia that the suit land is situated at Village Raurwahi, Tahsil Bhanupratappur, Distt. Kanker, comprising of total area 18.99 acres and since he is the title holder of the suit land, as the suit land fell in his share on prior partition held between him and his three brothers during the lifetime of Jiharam in which he is in possession, therefore, he is the title holder of the suit land which the defendants denied and stated that the plaintiff as well as the defendants all have share in the suit property, as such, the plaintiff cannot claim exclusive title over the suit land.

3. Upon evaluation of oral and documentary evidence, the trial Court by its judgment and decree dated 29-10-2004 dismissed the suit holding that the plaintiff has failed to prove that the suit land fell in his share in the prior partition held between them during the lifetime of Jiharam. On appeal being preferred by the plaintiff, the first appellate Court affirmed the said judgment and decree of the trial Court and dismissed the appeal against which this second appeal has been preferred in which the substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.

4. Mr. Prakash Tiwari, learned counsel appearing for the appellants herein / plaintiffs, would submit that both the Courts below have concurrently erred in holding that the suit land did not fell in the share of the plaintiff on prior partition. He referred to the statement of Mankuram (DW-2) to buttress his submission in which Mankuram has clearly admitted that the suit land fell in the share of the plaintiff on partition. Therefore, the suit ought to have been decreed by both the Courts below. He also referred to the statement of Mango Bai (DW-1) to demonstrate that the plaintiff is title holder of the suit land. Therefore, the finding recorded by the two Courts below that the suit land did not fell in the share of plaintiff Itwaruram is a perverse finding and deserves to be set-aside. He would rely upon a decision of the Supreme Court in the matter of Thulasidhara and another v. Narayanappa and others, (2019) 6 SCC 409 and would submit that as the findings are perverse, this Court must interfere with the finding of fact.

5. Mr. Parag Kotecha, learned counsel appearing for respondents No.1 to 6 herein / defendants, would support the judgment and decree of both the Courts below and would submit that the finding of fact so arrived at is based on the evidence available on record, it is neither perverse nor contrary to record. The statement of Mankuram (DW2) has to be read as a whole wherein he has clearly admitted that all the parties are cultivating the suit land, as such, the plaintiff has failed to establish that the suit land fell in his share on partition, that too to the extent of 18.99 acres.

6. I have heard learned counsel for the parties and considered the rival submissions made herein-above and also went through the record with utmost circumspection.

7. As noticed herein-above, the suit property was originally held by Jih