IMPORTANT POINTS
(1) Burden of proof lies on the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. Once that burden is discharged, the onus shifts to the other party. Evidence required to shift the burden need not necessarily be direct evidence, oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumption of law or fact. Question of onus looses significance when both the parties have led and adduced evidence.
(2) Concurrent findings of the trial court and first appellate court cannot be interfered unless perverse.
(3) Objection as to jurisdiction of trial court taken for the first time before first Appellate court is not sustainable.

Amitav K. Gupta, J—This second appeal has been preferred against the judgment and decree dated 29.01.2009 and 13.02.2009 passed by Addl. District Judge, Fast Track Court, Dumka in T.A.NO.12 of 2006 affirming the judgment and decree passed in Title(Partition) Suit no.67 of 1998 by Subordinate Judge-III, Dumka resulting in dismissal of the Title Appeal.

2. The defendants/appellants in this appeal were arrayed as defendants-Ist set in the Title Suit instituted by the respondents- Ist party, who were the plaintiffs.

3. The plaintiff instituted the suit seeking partition of the suit property and claiming 7/32 share of the suit property described in Schedule A, B and C of the plaint. It was pleaded that both the parties are Muslim and are governed by Hanafi School of Mohammedan Law. The properties described in Schedule A were recorded in the name of Lukhu Rai Bhatt and that of Schedule B were recorded in the name of Rajni Rai Bhatt and Schedule C properties were recorded jointly in the name of Lukhu and Rajni Rai Bhatt from whom both the parties, genealogical table of which has been given, claimed their share and interest over the said suit properties. That Rajni Bhatt died issueless immediately after conclusion of the last survey settlement whereupon the entire suit property was inherited by Lukhu and thereafter by his four sons,namely, Maru Rai Bhatt, Jawad Ali Rai Bhatt, Abad Ali Rai Bhatt, Sahid Rai Bhatt and the daughter, Tahiran Bibi.

The plaintiff’s case is that Shahid Rai Bhatt died in February, 1991 whereafter the plaintiff, Kuresan Bibi and the defendant-Ist party and her sons inherited the entire interest of Shahid Rai Bhatt in the suit property and came in joint possession of the same. That Shahid Rai Bhatt had four wives and his 2nd wife, namely, Laharjan Bibi was the widow of Abad Ali Rai Bhatt, the brother of Shahid Rai Bhatt. It is stated that Kamruddin Bhatt, father of Hasmuddin Bhatt(defendant no.5, the 2nd party), son of Laharjan Bibi, was treated as a son by Shahid Rai Bhatt, after his marriage with Laharjan Bibi. Since the plaintiff was facing inconvenience and difficulty in enjoyment of her share, which was in joint possession with the defendant, hence she requested the defendant Ist party for amicable partition of her share on 30.07.1991, which was declined and as a consequence thereof, the plaintiff filed the partition suit for 7/32 of her share in all the properties described in Schedule A, B and C and for carving her share in the property by metes and bound as also the cost of the suit.

4. Defendant Ist party filed their written statement on 22.08.1994, defendant no.2 filed additional written statement on 19.07.1999 and defendant no.5, Hasmuddin Bhatt also filed his written statement.

5. The defendant Ist party, in their written statement, challenged the maintainability of the suit stating that it was barred by limitation and by the principles of waiver, estoppel and acquiescence. The defendant’s case is that the plaintiff’s mother, Sajiban Bibi, who has been shown as the Ist wife of Shahid Rai Bhatt, from whom the plaintiff,Kuresan Bibi was born, is not correct rather the first marriage of Sajiban Bibi was with Jahar Ali Bhatt of village Basmatia and plaintiff is the daughter of Jahar Ali Bhatt. That Jahar Ali Bhatt divorced Sajiban Bibi whereafter she was married to Shahid Rai and plaintiff who was a leghar daughter(step daughter) was brought up in the house of Shahid Rai. It is admitted by the defendants that Shahid Rai had four wives and Sajiban Bibi was the Ist wife, Laharjan(2nd wife), Jinatan Bibi(3rd wife) and Basiran Bibi, the defendant, was the 4th wife. It is admitted that Lahargan was previously married to Abad Ali Bhatt, Shahid’s brother and after the death of Abad Ali, she was married to Shahid and she died leaving behind a son, Kamruddin. That Jinatan Bibi was married to Shahid Rai in the lifetime of Sajiban Bibi but she was subsequently divorced and after the death of Sajiban Bibi, S