JUDGMENT
Vishnudeo Narayan, J.
1. This appeal at the Instance of the plaintiff-appellant is directed against the impugned judgment and decree of affirmation dated 16.5.1989 and 30,5.1989 respectively passed in Title Appeal No. 39 of 1981, by Shri Philip Topno, 1st Additional District Judge, Palamau upholding the judgment and decree dated 20.7.1981 and 14.8.1981 passed in Title Partition Suit No. 79 of 1979 by 4th Additional Sub-ordinate Judge, Daltonganj whereby the suit of the plaintiff was dismissed
2. The plaintiff-appellant had filed the said title partition suit for metes and bounds partition of the suit property detailed in the scheduled at the foot of the plaint claiming half share therein and for carving out of a separate takhata of his half share in respect thereof by Survey Knowing Commissioner duly appointed by the Court.
3. The case of the plaintiff-appellant is that the entire suit land appertains to ratyati kaimi khata No. 23, of Village-Karakat, Police Station-Daltonganj now Chainpur in the district of Palamau recorded in the name of Jadubar Kahar in the Cadastral Survey Records of Right and there was a house on Plot No. 317, having an area of 0.03 acres of the plaintiff in which he has been residing said Jadubar Kahar had two sons, namely, Aliyar Kahar and Sukan Kahar. The plaintiff-appellant is the son of Aliyar Kahar aforesaid whereas defendants-respondent are the sons of Sukan Kahar aforesaid. It is alleged that the parties to the suit have their separate residence and cultivation for the sake of convenience but there has been no partition between them by metes and bounds in respect of the suit land and there is unity of ownership and possession of the parties over the suit land in which the plaintiff-appellant has half share. It is also alleged that Jamabandi is still joint though the plaintiff-appellant contributes in payment of the rent. It is alleged that the plaintiff-appellant demanded for partition of the suit land which was refused and hence this suit.
4. The case of the defendants-respondent, inter alia, is that though khata No. 23, stands recorded in the name of Jadubar Kahar in the Cadastral Survey Records of Right but all the plots of khata No. 23 except Plot Nos. 930, 936 and 937 having the total area of 24 decimals are recorded in the name of Sukan Kahar, the natural father of the defendants-respondent in his possession in the remark column of the said Cadastral Survey Records of Right and only Plot Nos. 930, 936 and 937 are in possession of Jadubar Kahar, the recorded raiyat. Their case further is that Jadubar Kahar had acquired land in village Karakat long before the Cadastral Survey and Settlement Operation and there had been a separation and both the sons of Jadubar Kahar had separated from their father and the land allotted to Aliyar Kahar, the father of the plaintiff-appellant, was recorded in khata No. 13 in the Survey Records of right in the name of Aliyar Kahar, the area of which is 11.26 acres. It is alleged that Sukan Kahar also pressed his father Jadubar Kahar for giving him land and when it was evaded by his father he forcibly took possession in the year 1908 of all the lands of khata No. 23, except the aforesaid three plots, and his possession was exclusively recorded in the Survey Records of Right and Jadubar Kahar only remained in possession of three plots i.e. Plot No. 930, 936 and 937, It is alleged that the rent payable of the land of khata No. 23 was Rs. 20/3/3 pie and it was difficult for Jadubar Kahar to pay the said rent to the landlord for possessing only 24 decimals of land of three plots aforesaid and as such only one year after the Survey and Settlement, Operation but prior to his death he surrendered the land of khata No. 23, to the landlord who after the said surrender made oral settlement of the entire land of Khata No. 23, with Sukan Kahar aforesaid and since then he had been in possession of all the plots of khata No. 23 as a raiyat and he began to pay rent to the landlord in respect thereof. The said Jadubar Kahar had died two years after the survey and after his death Sukan Kahar also took possession of the three plots aforesaid. It is alleged that since then Sukan Kahar remained in possession of the entire land of khata No. 23 to the exclusion of Aliyar Kahar and his heirs adversely to them for more than the statutory period and after him the defendants-respondent are in possession thereon perfecting their title. It is alleged that the open continuous, peaceful and notorious possession for a period much longer the statutory period of twelve years as their own right to the ouster of Aliyar Kahar and his sons, the defendants-respondent have perfected their title in respect of the suit land. Even if there had not been any surrender of the suit land by Jadubar Kahar and the raiyati settlement thereof in favour of Sukan Kahar, the rent receipts were granted by the landlord in favour of Sukan Kahar alone in respect thereof since 1922. It is also alleged that Aliyar Kahar or his son, the plaintiff-appellant, has no Interest in the suit land. Further case of the defendants-respondent is that Aliyar Kahar had sold the entire land of khata No. 13 of Village-Karakat Including his house standing on Plot No. 938 and settled to his ‘Sasural’ in village-Ranka and sometimes in the year 1950 due to the difference with his maternal uncle he returned to village Karakat and he was allowed to live in the house standing over Plot No. 917, belonging to the defendants-respondent out of compassion as by then, the defendants-respondent have constructed a new house in Plot No. 918, in which they were residing and the residence of the plaintiff-appellant in the house over Plot No. 917 is mere permissive. Lastly, it has been alleged that there is no unity of ownership and possession between the parties over the suit plots and as such the question of partition of the suit land by metes and bounds does not arise at all.
5. In view of the pleadings of the parties, the learned trial Court has framed the following issues for adjudication, in this case :
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff any cause of action for the suit?
(iii) Has the plaintiff unity of title and unity of possession with respect to the suit lands?
(iv) Whether the plaintiff is entitled to a decree for partition as claimed or nor?
(v) To what relief or reliefs if any is the plaintiff entitled?
6. The learned trial Court while deciding Issue Nos. (iii) (iv) has held that the land of khata No. 13, of village-Karakat exclusively stands recorded in the name of Aliyar Kahar, the father of the plaintiff-appellant and said Aliyar Kahar has sold the entire land of khata No. 13 to Bindeshwari Pandey. It has also been held that Jadubar Kahar was not in possession of all the plots recorded under khata No. 23 except three plots at the time of Survey and Settlement Operation and all the plots of khata No. 23, except three plots were recorded in possession of Sukan Kahar, the father of the defendants- respondent and said Jadubar Kahar had died two years after the Survey and Settlement and soon after the said Survey Settlement Jadubar Kahar had surrendered the land of khata No. 23 to the landlord from whom Sukan Kahar had taken settlement of the same and Sukan Kahar was paying rent to the landlord and thereafter rent is paid by the defendants-respondent to the State of Bihar. It has also been held that the plaintiff-appellant has failed to establish that there is unity of ownership and possession between the parties over the suit land of khata No. 23. In view of the findings aforesaid, the learned Trial Court had dismissed the suit of the plaintiff-appellant.
7. Aggrieved by the judgment and decree of the Trial Court, the plaintiff-appellant preferred Title Appeal No. 39 of 1981. The lower appellate Court below on reappraisal and re-appreciation of the evidence, oral and documentary, on the record affirmed the findings of the Trial Court and has dismissed the said appeal. The learned appellate Court below has held that there had been a severance and disruption of the joint family of the parties before the Survey and Settlement Operation and they separated in cultivation and also in mess and that is why the land of khata No. 13, was recorded separately in the name of Aliyar Kahar, the father of the plaintiff, and the possession of the lands of disputed khata No. 23, was recorded in exclusive possession of the father of the defendants-respondent and they and before them their father Sukan Kahar had been coming in possession over the suit land. It has also been held that there is no unity of ownership and possession between the parties in respect of the suit land and the suit land was adversely in possession of the defendants-respondent to the full knowledge of all concerned to the ouster of the plaintiff-appellant.
8. While admitting the appeal for hearing, this Court has formulated the substantial question of law which runs thus :
“Whether the learned Court below erred in not granting a decree for partition in respect of 24 decimals of land in Plot Nos. 930, 936 and 937 which were recorded in the name of Jadubar Kahar, the grandfather of the plaintiff, despite the fact that the defendants could not prove their defence that the said Jadubar Kahar surrendered the said lands to their landlords which in turn were settled in favour of defendants.”
9. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that Plot Nos. 930, 936 and 937 do not stand recorded in the remark column in the exclusive possession of Sukan Kahar and admittedly khata No. 23 is the raiyati khata recorded in the name of Jadubar Kahar, the admitted common ancestor of the parties to the suit and there is total absence of any specific finding regarding the case of surrender by Jadubar Kahar and its subsequent settlement of the aforesaid three plots in favour of Sukan Kahar by the landlord and as such there is unity of ownership and possession between the parties in respect thereof and these three plots are liable to be partitioned in which the plaintiff-appellant is entitled to half share and the learned appellate Court below did not properly construe the settled principle of law in respect thereof and has materially erred in dismissing the suit of the plaintiff-appellant in toto. In support of his contention reliance has been placed upon the ratio of the case of Mosstt. Mohni and Ors. v. Fariduddin and Ors., 1966 BLJR 761 and Kanhu Lal Marwari v. Palu Sahu and Ors., AIR 1920 Pat 1. It has also been submitted that it is well settled that the High Court while considering the matter in exercise of its jurisdiction in second appeal would not reverse the finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view and thus, the Impugned judgment is unsustainable.
10. It contra, it has been submitted that both the Courts below have concurrently held that there had been a metes and bounds partition between the parties prior to the Cadastral Survey and Settlement Operation and the land of khata No. 13, was exclusively recorded in the name of Aliyar Kahar, the father of the plaintiff-appellant and separate exclusive possession over all the plots except three plots of khata No. 23 was recorded in favour of Sukan Kahar, the father of the defendants-respondent and after the surrender of the three plots standing in the name of Jadubar Kahar in khata No. 23 aforesaid, the said three plots were settled with Sukan Kahar aforesaid and since then he is in possession over the same and he paid rent to the landlord and got rent receipts in respect of entire land of khata No. 23 since 1922 and also thereafter from the State and in this view of the matter, the defendants-respondent have perfected their title over the same by adverse possession to the ouster of the plaintiff-appellant. It has further been submitted that the finding of the learned appellant Court below affirming the Judgment of the trial Court is based on legal evidence on the record and the concurrent finding of fact in respect thereof of needs no interference in this appeal. Relying upon the ratio of the case of Ganesh Sahu and Anr. v. Dwarika Sao and Ors., AIR 1991 Pat 1, it has been submitted that members of a family possessing property separately is suggestive of the fact that there had been a disruption of a joint family and thus, there cannot be any doubt that there had been a previous partition.
11. There is no dispute in respect of the fact that khata No. 23, having an area of 8.89 acres stands recorded in the name of Jadubar Kahar, the common ancestor of the parties to the suit khata No. 23, consists of 31 plots and 28 plots out of them were recorded in exclusive possession of Sukan Kahar, the father of the defendants-respondent in the remark column. Plot Nos. 930, 936 and 937 were not recorded in exclusive possession of Sukan Kahar aforesaid in the remark column of the Cadastral Survey Records of Right. There is also no dispute in the genealogy of the parties to the suit as well as death of Jadubar Kahar two years after the cadastral survey. The case of the defendants-respondent is that it was difficult for Jadubar Kahar to pay Rs. 20/3/3 pie as rent to the landlord of khata No. 23 for possessing only 24 decimals of land of the three plots i.e. 930, 936 and 937, and he surrendered the land of khata No. 23, to the landlord only one year after the Cadastral Survey and thereafter Sukan Kahar, the father of the defendant-respondent took oral settlement of the entire land of khata No. 23 from the landlord and he came in possession of all the plots of khata No. 23, as raiyat and began to pay rent to the landlord in respect thereof. The plaintiff-appellant, who has taken oath as PW 4, has categorically denied in his evidence regarding the alleged surrender by Jadubar Kahar and consequent settlement of the land of khata No. 23, in favour of Sukant Kahar aforesaid. However, DW 2, Khakhan Kahar, the defendant-respondent in para-2, of his testimony has deposed about the surrender by Jadubar Kahar, of the land of khata No. 23, to the landlord due to his inability to pay rent and his father Sukan Kahar got the settlement of the land of khata No. 23 in his favour and since then he has paid the rent. He has also deposed that the plaintiff-appellant had not concern, whatsoever, with the land of khata No. 23, Ext. A/1, and Ext. A/2 are the rent receipts of the year 1330 and 1335 Fasli which corresponds to 1922 and 1928 respectively in respect of khata No. 23, which stand in the name of Sukan Kahar aforesaid. Ext. A is the rent receipt in respect thereof granted by the State in the name of defendant- respondent Khakhan Kahar. Except the aforesaid three rent receipts, there is no documentary evidence on the record to substantiate the case of surrender and consequent settlement of the land of khata No. 23, as alleged by the defendants-respondent. The existence of the rent receipts (Ext. A series) in the name of Sukan Kahar does not ipso facto substantiate the case of surrender and consequent settlement of Plot Nos. 930, 936 and 937. It is essential to mention here that the Record, of Rights is not a document of title at all and entries in such documents do not prove exclusive title of a person so recorded. The ratio of the cases of Mosstt. Mohni (supra) and Kanhu Lal Marwari, (supra) are referred to in respect thereof. Both the Courts below have concurrently held regarding the metes and bounds partition between the descendants of Jadubar Khar prior to Cadastral Survey and this fact stands concluded. However, the finding of both the Courts below regarding surrender and settlement referred to above is not only erroneous but also perverse in view of the evidence on the record. There is also no legal evidence on the record to show that the defendants-respondent had perfected their title in respect of the aforesaid three plots by adverse possession to the exclusion of the plaintiff-appellant or his father. The aforesaid three plots were recorded in the name of Jadubar Kahar, the ancestor of the parties to the suit and he was in possession over the aforesaid three plots and after his death his heirs are the joint tenant in respect thereof and as such these three plots are liable to be partitioned between his descendants i.e. the plaintiff-appellant and the defendants-respondent and there is definitely unity of ownership and possession between the parties over the three plots. Here in this case, the finding recorded by both the Courts below regarding surrender of the land of khata No. 23, by Jadubar Kahar one year after the cadastral survey and their consequent settlement with Sukan Kahar for coming to the conclusion that there is no unity of ownership and possession between the parties in respect of three plots aforesaid is without any legal evidence on the record and is also a result of misreading of the evidence and the said finding suffers from legal infirmly. Since the aforesaid three plots recorded in the name of Jadubar Kahar in his exclusive possession in the Cadastral Survey Records of Right shall be deemed to be the joint family properties of the parties to the suit and in absence of any case of defendants-respondent that these three plots have been partitioned by metes and bounds, there shall be presumption of the unity of ownership and possession between the parties over the same and in this view of the matter, the aforesaid three plots are liable to be partitioned as per the share of the parties to this case. Therefore, the impugned judgment of the learned appellate Court below suffers from illegality and thus it is open for this Court to set aside such a finding and to take a different view. The learned appellate Court below has committed a manifest error in not granting a decree for partition in respect of 24 decimals of land in Plot Nos. 930, 936 and 937.
12. There is merit in this appeal and it succeeds. The appeal is hereby allowed and the judgment and decree of both the Courts below are set-aside and the suit of the plaintiff-appellant is decreed in part. The plaintiff-appellant is entitled for partition only of Plot Nos. 930, 936 and 937 in which he has half share. Let a separate Takhata of his half share in the aforesaid three plots be carved out by appointment of a Survey Knowing Pleader Commissioner. No order as to costs in the facts and circumstances of this case.