Shiblal Kisku Vs Barki Soren

2. This appeal has been filed against the judgment dated 07.08.2023 passed in Civil Appeal No. 24 of 2020 by the learned District Judge-III, Dumka, whereby the appeal has been dismissed. The Trial Court judgment has been passed in Title Partition Suit No. 65 of 2011 vide order dated 21.12.2019 passed by the learned Senior Civil Judge-I Dumka whereby the suit was decreed on contest without cost and the

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learned trial Court held that the plaintiffs are entitled for halfshare in the suit land and the defendants are entitled for the remaining half share jointly.

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3. The counsel for the appellants has submitted that the plaintiffs are descendants of Dhano Kisku and defendants are descendants of Sri Ram Kisku, both were recorded tenants. Father of Dhano Kisku was Kuwar Kisku and father of Sri Ram Kisku was Budhrai Kisku and Kuwar Kisku and Budhrai Kisku were full brothers, their father being Siram Manjhi.

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4. The learned counsel for the appellants has submitted that the properties were shown in separate possession in Gantzer’s Settlement in parcha as back as in the year 1942 by Exhibit-A and there was also an order of Commissioner Exhibit-B, which was also recorded in the Gantzer’s Settlement certificate. He submits that there was a previous partition and therefore, there was no question of jointness. He has also submitted that issue no. 6 was the core issue involved in this case. The genealogy and the relationship between the parties is not in dispute.

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5. After hearing the learned counsel for the appellants this Court finds that the specific case of the plaintiffs was that there was a unity of title and unity of possession with respect to the suit property and the plaintiffs claimed that the parties were still in jointness but were in separate cultivating possession as per their convenience and there has never been partition by metes and bounds.

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6. On the contrary the case of the defendants was that there was separation of parties and the claim of separation was also supported by the entries made in the Gantzer’s settlement. It was also asserted by the defendants that the recorded tenants got themselves separated in mess as well as residence, on the basis of which the entries were made in the last settlement and the parties were in exclusive possession of their respective share with respect to the ancestral properties.

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7. This Court finds that the learned Trial Court considered the specific case of the defendants which was primarily based on Exhibit-A and Exhibit-B and observed that as per ExhibitA certain portion of land was shown in exclusive possession of Sri Ram Kisku whereas some were shown in exclusive possession of Dhano Kisku and some land were shown in joint possession of the parties and in the remarks column the entries were made is izmal of both. It is not in dispute that izmal means joint possession. It was also observed that the entries in Gantzer’s Settlement also contains the reference of the order passed by the Commissioner Exhibit-B, which was the certified copy of the order dated 02.10.1924, passed by Commissioner Bhagalpur, in Santhal Parganaas in Revision Appeal No. 30 of 1924-25 , which showed that the Commissioner had directed the Authority to make correction in the entries and had set aside the order passed by S.D.O.

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8. The learned Court took into consideration the judgment passed by the Hon’ble Apex Court and also the judgment passed by the Patna High Court and ultimately observed that mere possession of land and the entry made in revenue record as exclusive possessor of any particular portion of land will not be inferred as actual partition by metes and bounds. Further, some of the properties were shown as jointly recorded in the name of the parties in the revenue records. By referring to Exhibit-A the learned Court recorded that certain lands were shown as joint between Sriram Kisku and Dhano Kisku in the Gantzer’s settlement which showed that they were not separated.

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9. The Court also observed that jointness of Sriram Kisku and Dhano Kisku could also be inferred from the payment of rents in jointness, i.e. to say that the rent pertaining to entire Jamabandi No. 42 was still being paid through single receipt and both the parties have admitted that they were paying the rent jointly.

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10. Ultimately the Court held that the defendants failed to prove the previous partition between the parties and hence directed for partition and decreed the suit.

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11. The learned First Appellate Court has also considered the materials on record and have come to concurrent findings in the following manner:-

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“ 14 …. Kabjawari literally means possession by convenience. Such recording of Kabjawari, does never infer partition amongst the co-sharers, more so, when some of the plots in the same Khata remained in joint.

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Title cannot be based merely on the basis of entries in the revenue records that too in respect of possession alone. Admission of the parties that as per possession recorded in revenue records. One party had not interfered with the possession of the party has no bearing while question of conferring of title comes in Co-sharers may possess according to convenience and by purchase of share of one co-sharer, he cannot get title or possession on that particular plot alone on the basis of recording of possession in remarks column of revenue records. The whole notion adopted by both the courts below are incorrect on the face of if.

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That is to say that still certain lands were shown as joint between Sriram Kisku and Dhano Kisku in the Mr. Gantzer's settlement (Exbt.A), which means and shows that they were not been separated and whatever, entries been made in Exbt.A was merely the cultivating possession of the respective parties. It is also a well established proposition of law that in a joint Hindu Family jointness shall be presumed and the party claiming of partition shall have to get it proved. Further the defendants has also raised objection with regard to the separate and exclusive possession of their ascendants. With regard to possession over some land by exclusively or through settlement process pertaining to which they are coming in exclusive possession, but again it was onus of defendant to prove the same that the aforesaid lands were acquired exclusively by their ancestors, in as much as, if any property been acquired by any particular legal heir, the same shall have to be proved by the party contending the same, but no such evidence has been laid by the defendants, and in absence thereof the entire property shall deemed to be

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as of joint property been held by Sriram Kisku and Dhano Kisku. In fact defendants themselves have admitted during their cross-examination that both Sriram Kisku and Dhano Kisku ought to have half share in the entire suit property. But while the exact quantum of land if being calculated in exclusive possession of the respective parties, it can well be inferred that there was in-proportionate division of land between Dhano Kisku and Sriram Kisku, which is not permissible in law. Furthermore, jointness of land by Sriram Kisku and Dhano Kisku can also be inferred from payment of rent in jointness i.e. to say that the rent pertaining to that the rent pertaining to entire Jamabandi No.42 is still being paid through single rent receipt and both parties have admitted that they are paying rent jointly.

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Learned counsel for respondent during course of arguments has pointed out the admission been made by appellant during cross-examination pertaining to the exclusive possession of plaintiffs/appellant and defendants/respondent herein in the land been entered in the name of Sriram Kisku and Dhano Kisku respectively. In this regard, it would be pertinent to mention herein that the parties, if are in exclusive cultivating possession over a particular portion of land as per convenience does not mean that actual partition on metes and bounds has taken place amongst them. The onus lies upon the parties contending of separation, to get it proved and in absence whereof the jointness shall be the presumption. The defendants/respondent herein have miserably failed to prove the previous partition between the parties. Hence, there is unity between both parties for right, title interest and possessions. 15. Thus on the basis of aforesaid observation and discussion this court is of opinion that appellant does not hold any locus to file this appeal. In this regard, it would be pertinent to mention herein that it is well settled principle of law that it is the appellant, who needs to stand on its own leg and he was not be granted any relief due to weakness or fallacies on the part of respondents.”

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12. This Court finds that there are concurrent findings recorded by both the Courts based on materials on record, both

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oral and documentary, and it has come on record that portions of the properties were recorded in the joint names of the parties and even the rent for the entire suit property was being jointly paid. The learned courts have recorded concurrent findings that there has been no previous partition between the parties and directed for partition and that the defendants failed to prove the previous partition between the parties, and therefore, held that there was unity of title and unity of possession between the parties.

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13. There is no illegality in the aforesaid findings and no perversity as such in the matter of appreciation of evidence placed on record has been pointed out by the learned counsel for the appellants. This Court is of the view that no question of law, much less, any substantial question of law is involved in this case.

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14. Accordingly, this second appeal is dismissed.

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15. Pending interlocutory application, if any, is dismissed as not pressed.

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16. Let this order be communicated to the learned court concerned through ‘FAX/email’.

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(Anubha Rawat Choudhary, J.)

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11.12.2025

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