categorically stated that there has been partition in respect of some of the land between the parties to the suit which is also the case of the defendants which has also been stated by the witnesses of the defendants. The testimony of the witnesses as already indicated above in respect of some of the lands has not been demolished in any manner and there is nothing in the record to disbelieve the same. The oral testimony of these witnesses is corroborated by the separate Record of Rights existing in the name of some of the defendants which has been categorized as category no. II by the learned court below as already indicated above. In paragraph no.22 of the written statements, both set of the defendants have categorically stated that the Khata nos. 559, 457, 144, 488, 432 & 226 are the joint properties of the parties and the plaintiffs are having 1/3rd share out of the same. Apart from the categorical averments in the written statements the witnesses of the defendants have also stated that there is unity of title and possession in respect of these properties. Of course instead of telling the Khata number, these witnesses have identified the said plots by the name of the field. So certainly the learned court below erred in coming to a finding that there is no unity of title and possession in respect of any part of the suit land. After taking into consideration the pleadings and evidence in the record, this Court is of the considered opinion that the pleadings of the parties and the evidence in the record is sufficient to pass a preliminary decree for partition of plaintiffs’ 1/3rd share in the Khata nos. 559, 457, 144, 488, 432 & 226 of the suit land but the evidence in the record as already discussed above establishes that there is no unity of title and possession of the parties in respect of rest of the suit land.
