- (1.) THIS second appeal has been filed against the judgment and decree dated 10.5.2004 passed by the learned 3rd Additional District and Sessions Judge, Fast Track Court, Jamtara in Title Appeal No. 20 of 2001/6 of 2004 reversing the judgment and decree dated 24.3.2001 passed by learned Sub Judge 2nd, Jamtara in Title (Partition) Suit No. 32 of 1996/71 of 1998. Mr. A. K. Sahani, learned counsel, appearing for the appellant, submitted that the plaintiffs/respondents did not seek declaration that Schedule B property, was fit for partition and therefore, the judgment relied by the lower appellate court was not applicable in the present case. He further submitted that the lower appellate court did not meet the reasonings of the learned trial court with regard to Schedule B property. The plaintiff/respondent filed this suit for partition of his 1/4th share in Schedule A property and 1/2 share in Schedule B property. With regard to Schedule A property, the defendant/appellant conceded and accordingly decree was passed by the trial court. Regarding Schedule B property, the trial court accepted the submission of the defendant/appellant that the same was recorded as Chowkidari Jagir lands in the name of Rasik Bouri and as such the same was service tenure land and it was partitionable.
(2.) THE appellant filed the said appeal. The learned lower appellate court after considering the contentions raised on behalf of the appellant with regard to the Schedule B property and the evidence and the law in this regard, held that there was no bar under the law that service tenure land could not be partitioned. Rasik Bouri who was Chowkidar died and the land of Chowkidari devolved upon her 2. daughter Balika bouri who was the mother of the parties. She continued in possession over Schedule B property till her death. The parties were in joint possession of the said land. Such land did not vest in State after death of Rasik Bouri. As per Ext. A, there was amicable partition between the parties with regard to the Schedule B property and the parties were enjoying the same but the dispute arose after the appellant was appointed as Chowkidar. In paragraph -10, the learned lower appellate court concluded as follows: - "10. From the discussion made above and in view of the admitted facts as indicated above I am of this view that the contention of the learned counsel of the respondent that Chaukidari land is impartible and he being the eldest son is only entitle to succeed the same has got no force and not sustainable in the present form of the case. It is clear case of the parties that Balika Bouri came in possession after the death of Rasik Bouri and parties were joint in possession. Respondent No. 1 has been appointed as Choukidar not on service tenure basis rather he is salary paid employee and claim of the respondent No. 1 over the Schedule B properties as being the Chaukidar is not sustainable under law.  On such conclusion it allowed the appeal holding that the plaintiff was entitled to 1/2 share of the Schedule B Property and the judgment of trial court to that extent was set aside. In my opinion, the learned lower appellate court has correctly recorded the said finding. No substantial question of law is involved in this second appeal which is, accordingly, dismissed. However, no costs.;