The presumption of partition on the basis of entries in the remarks column showing separate possession is not rebutted by the fact that there was unequal distribution of the lands.

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Second Appeal

No. 210 of 2004

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Second Appeal No. 210 of 2004

Soma Oraon, S/o Late Khudia Oraon, resident of village- Kulli, P.S.

Bero, P.O. Bero, District- Ranchi

… Appellant

-Versus-

1.

Kaila Oraon, S/o Shamu Oroan, resident of village- Kulli, P.S. Bero,

District- Ranchi

2.

Deleted

3.

Etwa Oraon, son of Late Khudia Oraon

4.

Suka Oraon, son of Late Khudia Oraon

5(a). Bisram Oraon, son of Late Gandur Oraon

5(b). Suman Oraon, son of Late Gandur Oraon

6.

Jawra Oraon, son of Late Khudia Oraon

7(a). Gopal Oraon, son of Late Jantra Oraon

8(a). Birsa Oraon, son of Late Manga Oraon

8(b). Mahabir Oraon, son of Late Manga Oraon

9.

Deleted

10. Butra Oraon, son of Sukra Oraon

11. Deleted

All are resident of village- Kulli Police Station, Bero, P.O. Bero, District-

Ranchi

… Respondents

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CORAM:

HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

-----

For the Appellant

: Mrs. Nievedita Kundu, Advocate

For the Respondents : Mr. S.K. Sahay, Advocate

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16/04.01.2023

Heard Mrs. Nivedita Kundu, learned counsel for the appellant and

Mr. S.K. Sahay, learned counsel for the respondents.

2.

This second appeal has been filed being aggrieved and dissatisfied

with the judgment dated 10.02.2004 passed by the learned Additional

Judicial Commissioner, Fast Track Court No.VII, Ranchi in Title Appeal

No.85/2003 affirming the judgment dated 31.01.2003 passed by the learned

Sub-Judge IX, Ranchi in Partition Suit No.198/1996.

3.

The appellant herein had filed Partition Suit No.198/1996 for partition

of the half share in the land described in the Schedule-A of the plaint and

for carving out a separate Takhta by appointment of the Pleader

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Second Appeal

No. 210 of 2004

Commissioner. The said partition suit on contest was decided by the learned

Sub-Judge IX, Ranchi and after considering the judgment as well as the

evidence adduced on behalf of the parties, the learned Sub-Judge has come

to the conclusion that Schedule-A of the plaint were previously partitioned

much before the revisional survey operation and the respective shares were

possessed by all the raiyats and the suit was dismissed. Aggrieved with that

judgment dated 31.01.2003, the appellant filed Title Appeal No.85/2003,

which was decided by the learned Additional Judicial Commissioner, Fast

Track Court No.VII, Ranchi vide judgment dated 10.02.2004, whereby, the

appeal has been dismissed and the judgment of the learned trial court has

been affirmed. Being aggrieved with that judgment, the appellant has filed

this second appeal.

4.

This second appeal was admitted on 11.08.2006 on the following

substantial question of law:

“Whether the learned courts below are justified in law in

presuming partition on the basis of entries in the remarks

column showing separate possession, even though they found

that there was unequal distribution of the lands?”

5.

Respondents were noticed and pursuant thereto the respondents are

appeared in this second appeal.

6.

Mrs. Nivedita Kundu, learned counsel for the appellants submits that

the plaintiffs and the defendant are governed by their Oraon Customary law,

however the suit was filed for partition. According to her, the land situated

in village- Kulli, P.S. Bero, District- Ranchi being Khata No.16 are the

common ancestral properties of the parties. The said Khata was recorded in

the name of Kaila Oraon, Dedo Oraon, Mosomat Khelo Oraon, Foure Orain,

Maya Oraon, Fatru Oraon and Khoja Oraon. She further submits that after

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Second Appeal

No. 210 of 2004

their death, the plaintiffs and defendant have jointly inherited all the

movable and immovable properties of their ancestors. The R.S. Record of

right was prepared in the names of Kaila Oraon, Dedo Oraon, Mosomat

Khelo Orain, Jaura Oraon, Maya Oraon, Jatru Oraon, Jhuja Oraon, who were

the common ancestors of the plaintiffs and defendant. She