An amicable partition can be proved by documentary evidence, such as sale deeds and kabuliats, which are admissible in evidence and have presumptive value that can be rebutted by evidence.

This second appeal by the defendant-appellants is directed against the judgment and decree dated 30th May, 1978 allowing the appeal filed by the plaintiff-respondents from the original decree dated 30-1-71 passed by the learned Munsiff, Kailashahar in T. S. 7 of 1966 dismissing the suit for declaration of title and khas possession.

2. To appreciate the contentions canvassed at the Bar by learned counsel of both the sides it is necessary to state the facts briefly. The subject matter of the suit related to a plot of land measuring 1 kani appertaining to Dag No. 118/1 of Khatian No. 17 of Mouja Manu Valley.

3. Put very shortly, the case of the plaintiff was that Padmalochan Paul and Bilashmani Paul were the original owners of the land measuring 7 drones 2 kanis appertaining to Touji No. 81/1 of Mouja Samrurpar and out of this 7 drones 2 kanis Padmalochan Paul was the owner and possessor of 6 drones 2 kanis of land and Bilashmani Paul was the owner and possessor of 1 drone of land. After the death of Padmalochan Paul his sons namely Pitambar Paul and Prasanna Paul inherited the aforesaid land of their father. Thereafter the plaintiff who is the son of Pitambar Paul and Mahendra Paul (the other son) who is the father of defendants 1, 2 and 3 purchased the entire share of Prasanna Paul by dint of a Kabala dated 5-9-1335 T. E. Thus the plaintiff and Mahendra Paul became owners and possessors of 6 drones 2 kani of land of Touji No. 81/1 and the aforesaid I drone of land remained in possession of Bilashmani Paul. Both the plaintiff and Mahendra Paul got their names mutated over 6 drones 2 kanis of land and subsequently the plaintiff and Mahendra Paul amicably partitioned their lands and according to the partition plaintiff got 3 drones 1 kani of land in his share and Mahendra Paul got 3 drones 1 kani of land in his share. After partition Mahendra. Paul sold 1 drone of land to Amrit Tahiri out of his share by a registered deed of sale dated 12th of Bhadra, 1338 T. E. He also sold 10 kanis of land to one Sarat Malakar and this 10 kanis of land was again purchased by plaintiff by a registered deed dated 12-2-1347 T. E. Thereafter the wife of the plaintiff purchased 9 kanis 5 gandas of land from the aforesaid Bilashmani Paul. Thus by inheritance and purchase the plaintiff became owner of 4 drones 4 kanis and 5 gandas of land of the said Touji No. 81/1 and after sale Mahendra Paul owned only 1 drone 7 kanis of land which was inherited by the sons of Mahendra Paul namely defendants 1, 2 and 3.

4. The plaintiff pleaded that out of the aforesaid land he settled 3 kanis and odd land with one Nabin Mura who subsequently relinquished possession of this land in favour of him. But during survey settlement operation this 3 kanis and odd land of his share was wrongly recorded in the name of defendants 1, 2 and 3 under plot No. 118 of Khatian No. 17 of Mouja Manu Valley.

5. The plaintiff, therefore filed objection against this wrong recording but without any success. It was further alleged that taking advantage of this wrong recording the defendants dispossessed the plaintiff from 1 kani (described in schedule 2 of the plaint) of the aforesaid 3 kanis and odd land (described in schedule 3 of the plaint) on 3-6-65 A. D. Hence this suit for declaration of title and khas possession of 1 kani of land and also for rectification of the record of rights in respect of the 3 kanis and odd land of schedule 3 of the plaint.

6. The defendants 1, 2 and 3 resisted the suit by filing a written statement wherein they denied all the material averments of the plaint. It was averred that no mutual partition ever took place between Mahendra Paul and the plaintiff. It was contended that they were all through in possession of the suit land and the plaintiff was never in possession of it and that the other defendants were in permissive possession of the suit land.

7. Upon the pleadings, learned trial court framed 5 (five) issues. The suit was, at first, dismissed by th