VIKRAMADITYA PRASAD, J. - (1.) THE following substantial question framed at the time of admission of this second appeal is required to be answered. Whether in view of admission made by PW 1 Gorachand son of Budhu Kumhar that Bhikhu Kumhar and Budhu Kumhar partitioned half of each plots, the learned Court below could have ignored the admission and passed a decree for partition?
(2.) THE short facts that gave rise to aforesaid question are as follows - -In Schedule A of the plaint there are different plots, namely, plot Nos. 326, 331, 483, 484, 575. 581. 1531. 2849, 2850, 2196, 3284, 3294, 3292 bearing total are of 0.89 acres appertaining to Khata No. 205 in Mazua Bhagsuma within the P.S. Govindpur district Dhanbad. According to the plaintiff these lands were purchased by two persons namely Budhu Kumhar and Bhikhu Kumhar from one recorded tenant Sitaram and after the purchase the aforesaid two persons Budhu Kumhar and Bhikhu Kumhar exercised their diverse acts of possessions over those plots and in the year 1974 Budhu Kumhar dies leaving behind his wife Punia Dasi and one son Goraehand Kumhar (defendant No. 1) and a grand -son of his predeceased son Sadhu Kumhar and his wife Kamla Devi and a grand -daughter Latika Dasi and two daughters, namely Alia Dasi and Sajni Dasi, Bhikhu Kumhar also died twenty years back leaving behind his heirs, namely, Sunia Bala Dasi and three sons, namely Kanhai, Mahanand and Mahadeo Kumhar (All those heirs of Budhu Kumhar and Bhikhu Kumhar have been made defendants 1 to 11 in the suit). Thereafter all of them remained in joint possession and Goraehand and Nimai Kumhar conveyed their interest while joint in possession in the plots Nos. 483 and 484 measuring 0.11 dismals to the extent of their share to plaintiff No. 1 by a Registered sale deed dated 9.4.1980 (Exhibit -2) and similarly. Milani Bala Dasi plaintiff No. 2 who is the wife of plaintiff No. 1 has purchased by a registered deed dated 16.3.1983 from Sunia Bala Dasi wife of Bhikhu Kumhar the land to the extent of her share in the aforesaid two plots 483 and 484 (Exhibit - 2/a). Thereafter the plaintiff Nos. 1 and 2 came in Khas possession to the extent of their purchase in the aforesaid plots along with other co -sharers and cultivated it. Further case of plaintiff is that as the value of the land has escalated and it has become difficult for him to enjoy the property along with other co -shares a partition is required, consequently the plaintiff filed a partition suit for a decree of partition in respect of plot Nos. 483 and 484 to the extent of 0.11 dismals. The only defendant who contested the case is defendant No. 15, his case is that in fact this is a title suit filed in the garb of partition suit for declaring the title and recovery of possession by the plaintiff and the plaintiff has got no right, title and interest rather all his registered sale deeds are simply paper transactions. The specific case of the contesting defendant No. 15 is that, Budhu Kumhar and Bhikhu Kumhar were not own brothers and in their lifetime they partitioned the entire land purchased by them jointly and therefore there is no question of further partition of the land as all the land had been partitioned during the life time of Bhikhu Kumhar prior to the year 1974 rather in the year 1971 the son of late Bhikhu Kumhar sold 0.11 decimals of land of plot Nos. 483 and 484 (disputed land) to one Tek Bahadur for valuable consideration by a registered sale deed (Ext - C/1) and put that Tek Bahadur in possession thereof and since then possession continue with him and by registered sale deed (Ext -C) the said Tek Bahadur sold 5 -1/2 decimals land to contesting defendant No. 15 and put him possession. In nut shell the contesting defendants denied the jointness of the property and set out a case that the said land had already been transferred to Tek Bahadur much prior to alleged purchase by the plaintiff consequently as the partition had already taken place there is no question of fresh partition.
(3.) THE main issue before the trial Court was whether the plaintiff was entitled for a decree as claimed for? On consideration of the evidence oral and documentary, and also considering the evidence of PW 1 who is also defendant No. 1 the trial Court dismissed the suit as it found the following facts on evidence : - - "Moreover the heirs of Budhu and Bhikhu are defendants in the present suit, but even then they have not contested the suit which goes to show that they have already partitioned their property (P -12 of the L.C. Judgment)" Earlier in the same para he said : "PW 2 (It should have been as per record PW 1) who is son of Budhu Kum -har has himself admitted in his evidence that after purchase from Sita Ram, Budhu and Bhikhu divided the land." ;