- (1.) THIS Letters Patent is directed against the judgment dated 6th August, 1992 passed in F.A. No. 31 of 1980 (R) whereby the learned single Judge dismissed the appeal and affirmed the judgment and decree passed by the trial Court in Petition Suit No. 70 of 1970.
(2.) THE plaintiffs -respondents brought the suit for partition of the suit land situated at Mauza Basaha. The suit land was recorded in the name of four brothers, namely, Rajnath Singh, Goberdhan Singh, Dipan Singh and Sheoratan Singh. For the sake of convenience, Rajnath Singh and Dipnarain Singh, the two brothers, were living separately and Sheonarain Singh and Gobardhan Singh were also living separately. It was specific case of the plaintiffs -respondents that the brothers were living separately for the sake of convenience and no partition by metes and bounds took place among them. The defendants -appellants contested the suit by filing written statement stating that the suit property was partitioned by metes and bounds and all the four brothers had been living separately and have been coming in possession of their respective shares in the suit property. Since in the Hindu Law there is presumption of jointness, the defendants -appellants were directed to adduce evidence first in order to show partition by metes and bounds. Both parties led evidence. The trial Court, after appreciation of the evidence, has come to a finding that all the four brothers are the recorded tenants and their names have been recorded in the record of rights.
(3.) ACCORDINGLY , the suit was decreed. The learned single Judge in the first appeal re -appreciated the entire evidence and recorded a finding that there is admission of the defendants that rent was being paid jointly. The learned single Judge took notice of the certified copy of rentroll in Form 'M ' which was filed and brought on the record as Ext. 2 by the plaintiffs -respondents. Taking into consideration the admission made by the defendants regarding payment of rent jointly by the brothers and also in absence of any conclusive evidence of partition, the learned, single Judge affirmed the judgment and decree passed by the trial Court. In our view, when two Courts have come to a concurrent finding of fact that there has been no partition by metes and bounds, we do not find any cogent reason to reverse the finding recorded by both the Courts. Besides, in course of hearing, the learned Counsel appearing for the respondents informed this Court that the final decree ultimately passed in the Partition Suit, has been put in execution in the year 1980 and as per the final decree, the delivery of possession has been effected.;