JUDGMENT
Kanhaiyaji, J.
1. Defendants 1 to 11 of the first party are. the appellants. The plaintiffs and the other defendants are the respondents. The plaintiffs filed the suit for partition of half share of the lands described at the foot of the plaint, namely, khata No. 199, area, 9 bighas 1 Katha 9 dhurs khata No. 107, area 1 bigha 9 kathas 5 dhurs and khata No. 209, area 3 bighas 2 kathas 4 dhurs situated in mauza Pakaria; khata No. 6, area 1 bigha 1 katha 6 dhurs situated in mauza Bishunpura; and khata No. 161, area 1 bigha 3 kathas 3 dhurs situated in mouza Rekha Sundar, hereinafter called the suit properties’.
2. The common ancestor of the plaintiffs and the defendants first party was one Lalman Raj. He died before the cadastral survey leaving behind five sons, namely, Jugesar Rai, Ramtahai Rai, Jaleshwar Rai, Pritpal Rai and Parmeshwar Rai. The suit lands were measured in the cadastral survey operation, and the record of rights was prepared and finally -published in the beginning of 1895. The suit lands of mauza Pakaria were recorded jointly in the names of Ramtahai Rai and Jugeshwar Rai. The suit lands of village Bisunpura were jointly recorded in the names of Ramtahai Rai and Ramprit Rai, while the suit lands of village Rekha Sundarpati were recorded jointly in the names of. ‘ Ramtahai Rai and Pritpal Rai. A few years after the publication of the cadastral survey record of rights, the five sons of Lalman Rai separated from one another and partitioned their movable properties and began to cultivate the suit land separately. After the aforesaid separation, Jugesar Rai died leaving behind his son, Sukhlal Rai, Pritpal Rai died leaving behind his sons, Rambaran Rai and Bharosi Rai and Ramtahal Rai died leaving behind Nand Kumar Rai and Sital Rai. Sukhki Rai died leaving behind his son, Maniraj Rai, who is plaintiff No. 1, and the remaining plaintiffs 2 to 5 are the sons of plaintiff No. 1. Nand Kumar Rai died leaving behind five sons, namely, Seoratan Rai (Defendant No. 1-Since deceased), Mahinder Rai (defendant No. 2), Inder Rai (defendant No. 4), Raja Rai (defendant No. 9) and Sheobalak Rai (defendant No. 10). Defendant No. 3 is the son of defendant No. 2. Defendants 5, 6, 7 and 8 are the sons of defendant No. 4. Shital Rai died leaving behind two daughters, Mosmt. Deoraza and Bijuria who are defendants 12 and 13, Defendants 14 to 20 are the transferees from the contesting parties. Jaleshwar Rai died leaving behind his son Raj Kumar Rai.
3. The entire suit lands were measured in the last revisional, survey operation, and the record of rights was prepared and finally published in the month of March, 1916. The suit lands of khatas 199 and 107 of village Pakaria were recorded in the names of Nand Kumar Rai and Shital Rai having two shares, each having one, and Sukhlal Rai having one share. The lands of Khata No. 209 of village Pakaria were recorded in the names of Rambaran and Bharosi Rai, jointly having one share. The suit lands of Mauza Bishunpura were recorded in the names of Ramtahal Rai and Parmeshwar Rai, having two shares, each having one share; Sukhlal Rai and Rajkumar Rai having two shares, each having one; and Rambaran Rai and Bharosi Rai jointly having one share. The suit lands of village Rekha Sundarpatti were recorded in the name of Raj Kumar Rai, having one share and Ramtahal Rai having two shares. In the remarks column of the revisional survey record of rights, some of the lands are shown in separate and exclusive possession of the above named recorded persons, while the other plots are recorded in their joint possession.
4. The above named parmeshwar Rai, Rambaran Rai and Bharosi Rai died issueless. Rajkumar Rai died leaving behind his widow, Mosmt. Beasra Kuer, and she also died issue-less.
5. Shital Rai and his son Manager Rai brought Title Suit No. 313 of 1944 in the court of the Munsif at Bettiah against Nand Kumar Rai and his descendants and also against Mosmt. Beadra Kuer and Maniraj Rai, (plaintiff No. 1), claiming partition of their half share by metes and bounds in respect of the suit lands and other lands. The suit was compromised on the 18th August, 1945 between Shital Rai and his son and Nand Kumar Rai and his descendants only, expunging Mosmt. Kuer and without joining Maniraj Rai. The facts stated so far are not disputed and are borne out of the documents on the record.
6. The plaintiffs’ case, in brief, is that the different portions of the suit lands were being cultivated by the plaintiffs and the defendants first party and their ancestors, according to their convenience; but there had been no partition by metes and bounds. Defendants 12 and 13 have got no share in the suit lands, but they have been impleaded to avoid trouble in future. The plaintiffs demanded partition of their half share in the plaint lands, but the defendants first party are not prepared to partition; hence the suit by the plaintiffs for partition of half share of the suit lands by metes and bounds.
6. Defendants 1 to 11 filed one joint written statement contending that defendants 12 and 13 have got no share in the suit lands, that the share claimed by the plaintiffs is incorrect, that the suit lands were partitioned by metes and bounds amongst the five branches of Lalman Rai through Panchaiti on the 19th day of Chait, 1320 Fasli, prior to the last revisional survey operations, that the parties have been coming in exclusive possession of the different portions of the suit lands allotted to them, that the above named Parmeshwar Rai reunited with these defendants and their ancestor and died in state of jointness with them and so his share in the suit lands devolved upon them, that the portions of the suit lands allotted to Jalesar Rai have been purchased by the defendants and their ancestors, partly from his son Raj Kumar Rai, and the remaining ones from Mosmt. Beadra Kuer, that the portions of the suit lands allotted to Pritpal Rai have been partitioned between the parties after the death of his sons, Ram Baran Rai and Bharosi Rai, and that the present suit for partition of the suit lands by metes and bounds is not maintainable. The defendants also pleaded that the plaintiffs have got no cause of action, that the suit is barred by the law of limitation, estoppel and acquiescence and that the suit is undervalued and the court fee paid is in sufficient. So, the suit is fit to be dismissed and the plaintiffs are entitled to no relief. Defendants 12 and 13 filed their joint written statement contending that their father Shital Rai died about 9 or 10 years ago in a state of separation from defendants 1 to 11 leaving behind these defendants and their mother as his heirs and that their mother died in 1958, end, therefore, they have got the same share as defendants 1 to 11 have in the suit lands. They further asserted that the allegations made by defendants 1 to 11 against them were collusive and without merit.
7. The learned Second, Additional Subordinate Judge, Motihari, who tried the suit, framed eleven issues and decided all the issues in favour of the plaintiffs. He held that the defendants have failed to prove the partition of the suit lands by metes and bounds, that the story of reunion of Parmeshwar Rai with Ramtahal Rai or his sons was not established, that the story of purchase of portions of the suit lands from Raj Kumar Rai and Mosmt. Beadra Kuer was not established, that there was nothing to show that the lands allotted to the branch of Pritpal Rai were partitioned between the plaintiffs and the defendants first party after the death of his sons, Rambaran Rai and Bharosi Rai, that the suit was not undervalued and the court fee paid was sufficient, that the suit was maintainable and that the suit was not barred by the law of limitation and the plaintiffs had a valid cause of action. In the light of the above findings, the learned Additional Subordinate Judge held that the plaintiffs were entitled to a decree for partition of their half share in the suit lands and ordered for the preparation of a preliminary decree for partition of half share of the plaintiffs.
8. The first point raised by the learned lawyer, appearing for the appellants, was that there was a complete partition between the five sons of Lalman Rai, and the court below has erred in holding otherwise. In support of this submission, reliance is placed upon the award (Ext. G) dated the 19th Chait, 1320 Fs. The case of the defendants first party is that before the revisional survey, a dispute arose for partition between Ramtahal Rai and Sukhlal Rai, Sukhlal Rai lodged a complaint before the Manager, Kothi Rajghat Hardia, mokarraridar on behalf of Bettiah Raj, and, at the instance of the said Manager, the parties agreed to Panchaiyati. The panches effected a compromise in respect of the dispute between the parties regarding shares and they gave an award and allotted shares in this way that one share was allotted to Sukhlal Rai, one share to Nand Kumar Rai and one share to Shital Rai. Besides this, Ramtahal Rai was also given 2 bighas of zarpeshgi lands. In short, in this way, Ramtahal Rai was given two shares and 2 bighas of zarpeshgi lands and Sukhlal Rai got only one share. The award is neither registered nor stamped; nor does it appear to have been produced in any other suit or proceeding. It purports to bear the thumb impression of some of the Punches, who are said to have partitioned the lands by metes and bounds, and some of the ancestors of the parties, and all of them are said to be dead. The plaintiffs denied the thumb-impressions on the award, and no attempt was made on behalf of the defendants to get any of the thumb-impressions on the award compared with any thumb impressions of any of those persons who are alleged to have put their thumb impressions. The certified copies of the tanazas dated the 30th January, 1914 and 1st February, 1914 (Exts. D and D/1 respectively) of the last revisional survey operations show that there was a dispute between the ancestors of the plaintiffs and the defendants with regard to their share in the lands of the aforesaid khatas 199 and 107 of village Pakaria. So, it was essential for the defendants to produce the award in support of their claim, but it was not produced. The shares of the parties, it appears, were recorded on admission. The award (Ext. G) should have been produced in Title Suit No. 313 of 1944 for partition of the suit lands between the parties, but it was not produced. Therefore, it can be safely held that the conduct of the defendants creates a very-strong circumstance against the genuineness of the award (Ext. G). Even if the award is assumed to be genuine, it does not show as to which portions of the suit lands were allotted to which party. It is vague and no reliance can be placed on this document in support of the case made out by the defendants. Another reason to discard this document (Ext. G) is that this document shows that the lands were partitioned in three lots, while the revisional record of rights shows that all the five branches of Lalman Rai were in existence. Therefore, it is apparent that this document (Ext. G) cannot be relied in support of the contention raised by the learned lawyer appearing for the defendant-appellants. Under these circumstances, the award (Ext. G) has to be discarded, and no reliance can be placed upon this document in support of the case of the partition of the suit lands.
9. The next documents relied upon by the lawyer for the appellants in support of the story of partition are the revisional records of rights (Exts. C series). I have already given the contents of the revisional records of rights in brief. These documents only show that some members of the family of Lalman Rai had been recorded jointly in respect of the suit lands. On the basis of these entries, it cannot be held that the suit lands had been partitioned by metes and bounds prior to the revisional survey operation as alleged on behalf of the defendants firs! party. A mere definition of shares by itself affords a very slight indication of actual partition by metes and bounds. Moreover, the cadastral survey records of rights (Exts. 2 series), finally published in the beginning of 1895, show that the different sons of Lalman Rai were recorded with respect to the different portions of the suit lands, though admittedly they were joint. Therefore, the mention of the shares of the descendants of Lalman Rai with respect to the different portions of the suit lands cannot establish partition of the lands by metes and bounds.
10. If there would have been partition of the suit lands by metes and bounds, as alleged on behalf of the defendants, there could not have been Partition Suit No. 313 of 1944 for partition of the suit lands; nor could there have been a compromise between the two sons of Ramtahal Rai, the ancestors of the ‘defendants first party. In my opinion, this document also falsifies the story of partition set up by the appellants.
11. Another document on which much reliance has been placed by the learned Counsel appearing for the appellants is the registered zarpeshgi deed (Ext. H) dated the 12th March, 1951, executed by Maniraj Rai in favour of Sheo Balak Rai with respect to pots 176, 556 and 673 of Mauza Pakaria. According to the case of the plaintiffs, the descendants of the five branches of Lalman Rai had been cultivating the different portions of the suit lands according to their convenience. Plaintiff No. 1 (P.W. 1) has stated in his evidence that the parties cultivate some lands according to convenience, and the plaintiffs are in possession and occupation of half of the lands of Rambaran Rai and the re-remaining half is in possession and occupation of the defendants. He also stated that the parties were paying rent separately. The plaintiffs and the defendants live in separate houses. In this situation, it appears that plaintiff No. 1 raised money by executing the zarpeshgi deed to meet his necessity. Therefore, this document by itself can-not establish the partition of the suit lands by metes and bounds.
12. The next document relied upon by the learned Counsel for the appellants is an unregistered sale deed (Ext. F) dated the 5th October, 1913, said to have. been executed by Raj Kumar Rai in favour of Shital Rai in respect of plots 468, 632, 670, 1009 and 1033 appertaining to khata No. 226. The learned Counsel for the appellants submitted before us that khata No. 226, mentioned in the sale deed (Ext. F) is a mistake for khata No. 209, and the learned Additional Subordinate Judge has erred in discarding this document on the ground that the plots appertained to khata No. 226; but there is no such khata in the revisional survey record of rights nor in the cadastral survey record of rights. On comparison, I find that the plots do appertain to khata No. 209 of village Pakaria. But, the sale deed (Ext. F) is an unregistered document, and it cannot be admitted into evidence in support of the case of the defendants. Section 54 of the Transfer of Property Act permit transfer of tangible immovable property of a value less than Rs. 100/- either by a registered instrument or by delivery of the property. Thus, according to this section, there are only two modes of transfer by sale, and these are, (1) by registered instrument and (2) by delivery of property. The Registration Act does not distinguish between tangible and intangible immovable properly and makes registration optional in the case of immovable property of value less than Rs. 100/-. If a sale deed purporting to transfer a tangible immovable property of value less than Rs. 100/- is not registered, the sale would be ineffective unless it is accompanied by delivery of possession of the property. This sale deed can be used only as an evidence of the character of possession. In the instant case. the sale deed (Ext. F) can only be referred to under Section 49 of the Registration Act for the purpose of showing that the parties were dealing with the properties on the footing that there had been a partition. But, this sale deed purports to bear the thumb impression of Raj Kumar Rai which has not been admitted by plaintiff No. 1. No attempt has been made by the appellants to get this thumb-impression compared with some other thumb-impression of Raj Kumar Rai; nor has any evidence been given to show that no other thumb impression of Raj Kumar Rai was available. In the. circumstances and for the reasons given by the court below, I hold that the sale deed (Ext. F) is not a genuine document and no reliance can be placed upon it.
13. The other documents in support of the , story of partition of the suit lands by metes and bounds are the entries in the tenant’s ledgers. (Exts, B series) and the rent receipts (Exts. A series). The learned Additional Subordinate Judge, after considering these documents, has rightly discarded them for the reasons recorded in the judgment, and the learned lawyer, appearing for the appellants, has not challenged the findings ‘with respect to these documents.
14. The oral evidence on behalf of the defendants in support of their case of partition is also not satisfactory. They examined sixteen witnesses in all. Defendant No. 1 Sheoratan Rai (D. W. 14) has stated that in the lands bearing khatas 199 and 107 of mauza Pakaria, some land is in possession of the plaintiffs, but the plaintiffs have no share in the land which belonged to Rajkumar Rai. He has further stated that the lands bearing khata No. 109 in village Pakaria belonged to Bharosi and Rambaran Rai, and, after their death, those lands have been partitioned between the parties. There is no explanation by the defendants as to how the ancestors of the plaintiffs got only one share and the ancestors of the defendants got two shares besides additional land to the extent of 2 bighas, Sheobalak Rai (defendant No. 10) is D. W. 16. In his evidence, he has based the case of partition on jamabandis. He has stated that the plaintiffs had got 6 bighas of land in the suit lands, that is, l/3rd share, but he has not given the plot numbers of those 6 bighas of land. Therefore, as already pointed out, some of the plots of the suit lands have been recorded in the joint possession of the descendants of the five branches of Lalman Rai in the revisional survey records of rights, finally published in March, 1916; and, as admitted by defendants 1 and 10 that there had been no partition after the last revisional survey operation, so this admission coupled with the survey entry shows jointness of the suit lands.
15. Learned Counsel for the appellants next submitted that partition is proved when, admittedly, no land is cultivated jointly and separation in mess and worship and partition of movables are admitted. The Privy Council in Ganesh Dutt v. Jewach I.L.R. 31 Cal. 262 has laid down :
Cesser of commensality ? (sic.) is an element which may properly be considered in determing the `question whether there has been a partition of joint family property, but it is not conclusive. It is therefore necessary to consider whether the evidence in other respects supports or negatives the theory that the cesser in this case was adopted with a view to partition in the legal sense of the word”. Therefore, it is essential to consider the other evidence in the case to decide that the facts proved support the story of previous partition. The question of partition is one of fact and has to be decided with due regard to the cumulative effect of all the facts and circumstances. It is well settled that the burden of showing that there had been a partition is on the person setting it up.
16. One more circumstance, namely, that the plaintiff has admitted partition of Jalesar Rai and Prit Pal Rai, the two sons of Lalman Rai, is very much relied upon by the learned Counsel appearing for the defendants in support of his submission that there had been a previous partition. Plaintiff No. 1 in his evidence stated :
Raj Kumar and Ram Baran were separate, but I do not know if they died before revisional survey or thereafter. They had become separate before the cadastral survey.
If this evidence is accepted, then it suggests that separation had taken place before the cadastral survey; but it is neither the plaintiffs’ nor defendants’ case (hat there had been partition before the cadastral survey. The definite case of the defendants is that the partition took place after the cadastral survey and before the revisional survey. Therefore, cumulative effect of all the facts and circumstances of this case shows that there had been no previous partition by metes and bounds and the defendants have failed to substantiate their case,
17. Learned Counsel, appearing for the appellants, did not challenge the finding of the trial court with regard to the claim of the defendants that Parmeshwar Rai re-united with the defendants or their ancestors. The learned Additional Subordinate Judge under issue No. 7 has rightly held that there is no evidence on the record in support of the reunion of Parmeshwar Rai with Ramtahal Rai or his sons, and, therefore, it must be held that Parmeshuar Rai never reunited with the defendants and died in a state of jointness with them,
18. Considering the entire evidence and the materials on the record and the circumstances of the case, I hold that the defendants have failed to prove previous partition, and, the court below has rightly decreed the suit for partition of half share of the plaintiffs in the suit lands.
19. Defendants 1 to 11 and defendants 12 and 13 filed a joint petition of compromise in the court below adjusting their share. But the compromise was not recorded because the lawyer for the defendants 12 and 13 did not turn up at the time of the argument. This compromise petition shall be considered, if parties so desire at the time of the preparation of the final decree. The portions of the suit lands transferred to the defendants second party, if proved, shall be allotted to the takhtas of their respective transferers as observed by the learned Additional Subordinate Judge.
20. In the result, the appeal fails and it is, accordingly, dismissed with costs.
S.N.P. Singh, J.
21. I agree.