JUDGMENT

P. K. MISRA, J. — Plaintiff has filed this appeal. The suit was filed for partition of properties as described in Ka, Kha, Ga and Gha Schedules of the plaint. The plaintiff’s prayer for partition has been accepted by the trial Court in respect of Lot Nos. 1 and 3 of Ka Schedule and Lot Nos. 1 and 4 of Kha Schedule. The prayer for partition has been rejected in respect of Lot. No. 2 of Ka Schedule and in respect of the entire Ga and Gha Schedule properties. So far as Lot Nos. 2, 3, and 5 of Kha Schedule are concerned, it has been held that the plaintiff alone is entitled to such properties. The plaintiff is aggrieved by the refusal of the trial Court to partition Lot No. 2 of Ka Schedule and Ga and Gha Schedule properties. The decree of the trial Court in respect of other properties having not been challenged by any of the parties has become final and the present appeal is confined only to Lot No. 2 of Ka Schedule and Ga and Gha Schedule properties.

2. The cases of the rival parties relating to the aforesaid disputed properties now involved in appeal are only required to be discussed. There is no dispute that plaintiff and defendant No. 1 are two brothers and Gajendra was their father and defendant No. 2 is their widowed sister. The dispute relating to Lot No. 2 of Ka Schedule and Ga Schedule is confined to plaintiff and defendant No. 1, whereas the dispute relating to Gha Schedule properties involves primarily the plaintiff and defendant No. 2.

3. Lot No. 2 of Ka Schedule is a leasehold property. It is the case of the plaintiff that out of the leasehold property extending to Ac. 0.70 decimals, Ac. 0.43 decimals of land had fallen to the share of Gajendra in a registered deed of partition effected in the year 1969 and the balance Ac. 0.27 decimals had fallen in equal proportion to the shares of three other brothers of late Gajendra. The plaintiff claims that some constructions have been made on Lot No. 2 with the joint contribution of plain¬tiff and defendant No. 1 and after the death of Gajednra in the year 1978, the same should be partitioned between plaintiff and defendant No. 1, as the other sisters of plaintiff and defendant No. 1 including defendant No. 2 have relinquished their interest.

The case of defendant No. 1 in respect of this property is that the periodical lease having not been renewed, plaintiff cannot claim any share. It is further pleaded that even assuming that plaintiff can claim any share, it had been decided by Gajen¬dra and his brothers that out of Ac.0.43 decimals, defendant No. 1 would get Ac.0.34 decimals and the balance Ac. 0.09 decimals should be enjoyed by Gajendra. For the aforesaid purpose, defend¬ant No. 1 has relied upon an agreement between Gajendra, his brothers and defendant No. 1, dated 10.1.1969.

4. The trial Court has rejected the prayer for partition of plaintiff in respect of this Lot in Ka Schedule on the ground that the lease having expired and having not been renewed, par¬ties cannot claim any right for partition. It is further found that the property being Khasmahal in nature, in absence of the State, the prayer for partition is not sustainable.

5. The learned counsel appearing for defendant No. 1-respondent has supported the conclusion of the trial Court on this aspect. He has also filed an application under Order 41, Rule 27, Code of Civil Procedure, for admitting the order dated 5.1.1984, passed by the Tahsildar, Chandabali, recommending that out of Ac. 0.43 decimals, Ac. 0.34 decimals may be renewed in favour of defendant No. 1 and Ac. 09 decimals should be renewed in favour of the plaintiff. The plaintiff-appellant has filed objec¬tion stating that earlier the Tahsildar had recommended that the Ac. 0.43 decimals of land should be renewed half and half in favour of plaintiff and defendant No. 1.

6. The reasoning given by the trial Court rejecting the prayer for partition in respect of Lot No. 2 of Ka Schedule cannot be accepted. Even though the lease had not been renewe