Schedules E & F situated in Villages Rampur & Bhulai – total 55 acres of land as being some less fertile than that of Villages Parasdiha, Jamai, Bhesamunda & Dhondha, fell in the share of defendant No.1. Both the Courts below taking into consideration oral and documentary evidence on record, particularly taking into account the statement of Deovansh Patel (DW-1) – defendant No.1, clearly reached to a finding that oral partition took place between the parties and both the parties have continued in possession of their respective shares and in cultivating possession and also developed the lands and house situated therein and acquired certain additional properties out of their income derived from the said property fell in their share / favour and developed the property. As such, both the Courts below have clearly come to a definite finding that since prior partition has not only been done, but it has also been acted upon between the parties, though the properties are recorded jointly in the revenue records, and declined to interfere on the ground that oral partition has been acted upon and respected by both the parties and it is improper to interfere with the fact of prior partition affected between the parties in presence of their mother, as the parties are in cultivating possession of the same for last 30-40 years, and thereby granted decree for permanent injunction in favour of the plaintiff. The finding recorded by the two Courts below is a finding of fact that prior partition took place between the plaintiff & defendant No.1 who are real brothers in presence of their mother immediately after the Holi festival and thereafter, they are in cultivating possession of their respective shares and developed
