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2012 DIGILAW 8 (PAT)

Rajdeo Prasad v. Kamaldeo Prasad

2012-01-03

MUNGESHWAR SAHOO

body2012
Mungeshwar Sahoo, J. – The defendants have filed this First Appeal against the judgment and decree dated 8th April, 2009 passed by Sri Shyam Kishore Jha, the learned Subordinate Judge IV, Jehanabad in Partition Suit No.147 of 2003/169 of 2005 decreeing the plaintiff-respondent’s suit to the extent of his half share. 2. The plaintiff-respondent, Kamaldeo Prasad filed the aforesaid partition suit claiming half share in the Schedule-III property of the plaint. The plaintiff claimed the said relief alleging that Bahadur Prasad was the father of plaintiff and defendant no.1. The defendant nos.2 to 4 are the sons of defendant no.1. Said Bahadur Prasad died leaving behind his widow, Dhanmatiya Devi and two minor sons namely, Rajdeo Prasad, defendant no.1 and Kamaldeo Prasad, plaintiff. After the death of Bahadur Prasad, his widow shifted from her matrimonial village to her naihar village, Dharampur. After attaining majority, the defendant no.1 became the karta of the joint family. The mother Dhanmatiya Devi had sufficient money which she collected from selling the property at her matrimonial village and she purchased lands in village Dharampur. The plaintiff was an employee in Postal Department and he used to give his entire income to the defendant no.1 who was karta. The defendant no.1 purchased many properties in the name of members of joint family. The details of the joint family property have been mentioned in Schedule-I of the plaint. Out of the said Schedule-I property, Dhanmatiya gifted 1.54 acres i.e. Schedule-II of the plaint in favour of Ajay Kumar, the son of plaintiff and Prabhat Kumar, the son of defendant no.1 by registered gift deed dated 2.7.1983. The said property is not the subject matter of the suit. Schedule-III property is remaining land excluding Schedule-II from Schedule-I land. There were some differences between the females and, therefore, the parties separated in mess. The defendant no.1 gave some land to the plaintiff for the purpose of separate cultivation and for the sake of convenience but there had been no partition by metes and bounds. The plaintiff demanded partition and on refusal filed the partition suit. 3. The defendants appeared and filed a contesting written statement alleging that Dhanmatiya Devi had no source of income. She had acquired the property in the year 1938 to 1947 out of the income of defendant no.1. The plaintiff demanded partition and on refusal filed the partition suit. 3. The defendants appeared and filed a contesting written statement alleging that Dhanmatiya Devi had no source of income. She had acquired the property in the year 1938 to 1947 out of the income of defendant no.1. The mother had nothing to purchase any land because she shifted to Dharampur for the safety of her children. The defendant no.1 was in service under the Zamindar and out of his income, he acquired 1.44 acres by settlement on 30.5.1943 from Mahanth Dwarika Das. He also purchased many properties through sale deeds out of his own income in his name. After abolition of Zamindari, he was appointed in the Govt. service and in the year 1958, he acquired properties out of his own income. The defendant no.1 with defendant no.3 and plaintiff had also purchased lands in the year 1961 and in the year 1965 which has been detailed in paragraph 17 of the written statement. Before the year 1977, he had already sold 1.65 acres of land to different persons through various registered sale deeds. Plot No.160 measuring about 64 decimals was acquired through registered sale deeds dated 11.4.1967 and 21.8.1969 in the name of plaintiff and defendant no.1. In the year 1973, there was exchange with Fagu Mahto through registered deed of exchange dated 26.6.1973. The defendant no.1 acquired the property in the year 1947 in the name of his mother. There was exchange of the land in between the mother and plaintiff and defendant no.1 in the year 1974. The allegation of plaintiff that he was paying his income to defendant no.1 is denied. The property which was gifted to Ajay and Prabhat by Dhanmatiya has been divided half and half between them. The plaintiff and defendant no.1 are living separately since after the plaintiff came in service. There was oral partition regarding the self-acquired property of defendant no.1 and property purchased by defendant no.1, defendant no.3 and plaintiff and also the properties which were acquired under deed of exchange and each of them i.e. the plaintiff, defendant no.1 and defendant no.3 were allotted separate schedule of lands and all the three came in possession over their respective schedules and accordingly, they also mutated their names in Anchal office separately and also in the consolidation proceeding, their names have been entered separately. After the said partition, the defendant no.1 has purchased 54 decimals of land through registered sale deed and has included the name of plaintiff. The plaintiff and defendants as well have alienated some lands to different persons by registered sale deeds in the year 1981, 1989 and 1992 and, therefore, there is no unity of title and possession with respect to the suit property. 4. On the basis of the aforesaid pleadings, the learned Court below framed the following issues: – (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got any cause of action for the suit? (iii) Whether the suit is barred by law of limitation? (iv) Whether the suit is barred by principle of estoppel, waiver and acquiescence? (v) Whether the suit is barred by Section 34 of the Specific Relief Act? (vi) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? (vii) Whether there is unity of title and possession over suit land in between the parties? (viii) Whether the plaintiff is entitled to a decree of half share in the suit land described in schedule-III of the plaint? (ix) To what other relief or reliefs the plaintiff is entitled to get? 5. After trial, the learned Court below held that Exhibit-D, the partition schedule is inadmissible because of want of registration and, therefore, it cannot be relied upon as a proof of previous partition and ultimately held that it is firmly established that separate acquisitions by separate coparceners of a joint Mitakshara are not evidence of separation and are perfectly consistent with the jointness of the family. Further, any arrangement for the sake of convenience in cultivation does not amount to partition and, therefore, held that there is unity of title and possession between the plaintiff and defendants regarding the Schedule-III property and decreed the suit. 6. The learned counsel, Mr. Ganpati Trivedi submitted that the learned Court below has not considered the relevant documents filed by the defendants in its right prospective and has recorded the finding regarding unity of title and possession on the basis of unreliable evidence. The learned Court below wrongly discarded and not relied upon Exhibit-D which is not required to be registered and moreover, it is an admitted document. The learned Court below wrongly discarded and not relied upon Exhibit-D which is not required to be registered and moreover, it is an admitted document. The learned Court below did not even consider the admission of the plaintiff who was examined as P.W. 7 wherein he has admitted that he was given 4.52 acres of land and his name has been mutated with regard to the said property. The learned Court below also did not consider the Register-II opened separately in the name of plaintiff, defendant no.1 and defendant no.3 separately with respect to the property allotted in Exhibit-D which is of the year 1974. The learned Court below also did not consider the registered sale deed executed by plaintiff himself i.e. Exhibit-A/4 which is dated 3.6.1981 wherein the plaintiff himself categorically admitted that there was partition between him and the defendant no.1. According to the learned counsel, the plaintiff included the properties which were sold to the different persons and also the property which was given in exchange to Fagu Mahto and, therefore, the area of the suit property increased. In fact, the suit property is only 10 acres and odd. Out of the said property in Exhibit-D, the plaintiff has been given 4 acres 52 decimals and the defendant no.1 was allotted 4 acres 45 decimals and the defendant no.3 was allotted 1.55 acres and according to this partition, their names have been mutated in the Register-II i.e. Exhibit-H, H/1 and H/2 respectively. The parties were separate since more than 29 years. They have separate messes, separate residences, separate transactions of the property and also separate acquisitions. 7. During the pendency of this First Appeal, an application under Order 41 Rule 27 read with Section 151 C.P.C. was filed by the appellant on 22.6.2011 praying therein to allow the appellant to adduce additional evidence by producing the certified copies of the registered sale deeds executed by the son of plaintiff and plaintiff-respondent in the year 2007 and registered sale deed dated 6.4.2011 executed by the plaintiff. The learned counsel for the appellant in support of this application submitted that the appellant had no knowledge about the execution of registered sale deeds by the son of plaintiff-respondent in favour of Sharda Devi and others on 9.1.2007 and sale deed dated 9.1.2007 in favour of Smt. Sushma Devi. The learned counsel for the appellant in support of this application submitted that the appellant had no knowledge about the execution of registered sale deeds by the son of plaintiff-respondent in favour of Sharda Devi and others on 9.1.2007 and sale deed dated 9.1.2007 in favour of Smt. Sushma Devi. So far registered sale deed dated 6.4.2011 is concerned, the same has been executed during the pendency of this appeal by the plaintiff-respondent. When the appellant came to know about the said sale deeds executed by son of plaintiff and plaintiff, he obtained certified copies by filing application on 8.6.2011. The certified copies were delivered to him on 9.6.2011. According to the learned counsel, all these three sale deeds are admitted documents. The said documents have been executed by the son of the plaintiff-respondent and the plaintiff-respondent himself and in these sale deeds, they have categorically admitted the fact of previous partition. Because the appellant had no knowledge about the said sale deeds, he could not produce the registered sale deeds of the year 2007 in the Court below and so far registered sale deed of the year 2011 is concerned, it is executed during the pendency of the appeal and, therefore, the said documents would be necessary to pronounce judgment in a more satisfactory manner. On these grounds, the learned counsel for the appellant submitted that the impugned judgment and decrees are liable to the set aside and the plaintiff’s suit for partition be dismissed. 8. On the other hand, the learned senior counsel, Mr. Kamal Nayan Choubey appearing on behalf of the respondent submitted that the learned Court below after considering the evidences recorded a finding that there was no partition between the parties. It is well settled principles of law that the burden is on the person to prove the fact of previous partition because according to Hindu Law, the family is presumed to be joint unless the contrary is proved. According to the learned counsel, merely because the names have been mutated separately in revenue records or consolidation khatiyans, there can be no presumption that there had been partition and moreover, these documents neither create title nor extinguish title in favour of any person. According to the learned counsel, merely because the names have been mutated separately in revenue records or consolidation khatiyans, there can be no presumption that there had been partition and moreover, these documents neither create title nor extinguish title in favour of any person. The learned Court below has considered the fact that when the partition alleged to have taken place, the mother was alive but she was not allotted any share and the defendant no.3 who had no share was allotted land and, therefore, the learned Court below has rightly disbelieved the partition. The Exhibit-D has been rightly discarded and not relied upon by the learned Court below because it is not signed by the plaintiff. Regarding the application under Order 41, Rule 27 C.P.C., the learned counsel submitted that at this stage, the appellant cannot be permitted to adduce additional evidence. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. 9. In view of the rival contentions of the parties, the only point arises for consideration in this appeal is as to “whether there is unity of title and possession between the parties as alleged by the plaintiff or there had already been partition between the parties in the year 1974 as alleged by the defendant-appellant” and “whether the impugned judgment and decree are sustainable in the eye of law?” 10. According to the plaintiff-respondent, Bahadur Prasad died leaving behind Dhanmatiya Devi and the two minor sons i.e. the plaintiff and defendant no.1. Dhanmatiya Devi sold the properties of her husband and shifted to her naihar village for the safety of her both minor sons. Out of the money she purchased the suit property. The parties are in joint possession. They only separated 4-5 years ago for convenience but there had been no partition by metes and bounds. On the contrary, according to the defendant no.1, the properties are self-acquired properties of defendant no.1. However, in the written statement, all the properties mentioned in the suit were partitioned between the parties according to the defendant in the year 1974 and a list of properties was prepared. In view of the above pleadings of the parties, it is not necessary to go into details regarding the self-acquisition by defendant no.1 or whether the properties are joint family properties. In view of the above pleadings of the parties, it is not necessary to go into details regarding the self-acquisition by defendant no.1 or whether the properties are joint family properties. According to the plaintiff, the suit property is joint family properties and there had been no partition. According to the defendant, all the properties have been partitioned. Therefore, this is the only question to be decided in this appeal. 11. From perusal of the Schedule-III of the plaint, it appears that the lands comprised within plot no.468/279, 547/ 315 and 546/320 have also been included in the plaint. It may be mentioned here that admittedly, these properties have been gifted by Dhanmatiya Devi to Ajay and Prabhat i.e. sons of plaintiff and defendant no.1. The Schedule also includes plot no.775 which has already been sold in the year 1961 measuring 1.65 acres. Admittedly, plot no.60/37, 272/160 and 273/160 were exchanged by Fagu Mahto total measuring 1.24 acres but the plaintiff has included these lands also in the Schedule-III of the plaint. The plaintiff has also included the lands purchased by defendant no.2 in Schedule-III of the plaint. 12. P.W.1, Dinanath Paswan has stated that both the parties are separate according to convenience since last 5 years but there had been no partition between them. P.W.2, Bhimsen Ram has stated that Dhanmatiya Devi has sold 10 bigha lands and out of that property, she purchased lands in her naihar village and the parties are separate since last 5 years. There had been no partition. P.W.3, Sunil Prasad also stated that there had been no partition between the two brothers. They are living separately since 5 years according to convenience. Both P.W.2 and P.W.3 have stated that about 5 bigha land was given to the plaintiff for separate cultivation according to convenience. Total land is about 23 bighas. P.W.5, Brahmanand Pandey stated the same thing but he has stated that plaintiff was given 6 bigha of land for separate cultivation. The other witness, P.W.6 has also stated the same thing as that of P.W.4. 13. P.W.7 is the plaintiff, Kamaldeo Prasad. In the examination-in-chief, he has supported the case made out in the plaint. P.W.5, Brahmanand Pandey stated the same thing but he has stated that plaintiff was given 6 bigha of land for separate cultivation. The other witness, P.W.6 has also stated the same thing as that of P.W.4. 13. P.W.7 is the plaintiff, Kamaldeo Prasad. In the examination-in-chief, he has supported the case made out in the plaint. However, in the cross-examination at paragraph 26, he has admitted that his mother had gifted 1.53 acres of land to his son, Ajay Kumar and son of defendant no.1 namely Prabhat Kumar and there had been partition of the gifted land between both of them to the extent of half and half and he is cultivating the said half land. At paragraph 27, he has expressed his ignorance about the plot numbers of the land which were gifted by registered gift deeds. At paragraph 46 of his cross-examination, he has admitted the fact that there is no paper regarding total joint land measuring about 23 bighas. He has also admitted that in his name, demand register has been opened for 4.52 acres. He has also admitted that separate demand register is in the name of Prabhat Bihari regarding 1.55 acres land. Separate demand register in the name of defendant no.1 has been opened regarding 3.95 acres. P.W.8 is formal witness. These are the oral evidences produced by the plaintiffs. 14. From perusal of the impugned judgment, it appears that the learned Court below has not at all considered the admission of this witness made in paragraph 46 of his deposition in the cross-examination. To prove this separate demand in the name of the plaintiff and defendant no.1 and defendant no.3, the defendants have produced the Exhibit-H, H/1 and H/2. These are certified copies of Register-II. The area mentioned in these Exhibit-H series completely tally with the area of Schedules mentioned in Exhibit-D in their respective names. The defendant no.1 was allotted the lands covered under Exhibit-A, A/1, A/2 and A/3 total measuring 79 ½ acres. These sale deeds stand in the name of defendant no.2. A separate demand register has been opened in his name regarding this property. P.W.7, the plaintiff in his evidence at paragraph 14 has admitted that all the sons of defendant no.1 were employed. This defendant no.2 was employed as compounder. He also admitted that defendant no.3 was employed in Punjab National Bank as peon. A separate demand register has been opened in his name regarding this property. P.W.7, the plaintiff in his evidence at paragraph 14 has admitted that all the sons of defendant no.1 were employed. This defendant no.2 was employed as compounder. He also admitted that defendant no.3 was employed in Punjab National Bank as peon. Thus, the plaintiff admitted that the defendant nos.2 and 3 had separate source of income. Since these properties purchased through Exhibit-A series were his self-acquired properties, those properties were not the subject matter of partition. 15. From perusal of Exhibit-D, it appears that it is only list of properties. There are 3 Schedules. The plaintiff has been allotted 4.52 acres of land. The defendant no.1 has been allotted 4.45 acres of land and defendant no.3 has been allotted 1.55 acres of land. The learned Court below held that this Exhibit-D is inadmissible evidence because it is unregistered. In my opinion, the learned Court below has wrongly not relied upon this Exhibit-D because it is not a partition deed and the partition was not affected by this document. 16. In AIR 1988 Supreme Court 881(Roshan Singh and others vs. Zile Singh and others), the Apex Court at paragraph 9 has held as follows: – “9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S.17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of S.91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla’s Registration Act, 8th Edn., pp.54-57.” 17. The learned Court below while discarding this Exhibit-D did not consider the settled principles of law laid down by the Apex Court. Now, therefore, in my opinion, Exhibit-D is admissible in evidence. Further, this Exhibit-D is corroborated by Exhibit-H series and also the admission made by the plaintiff in paragraph 46 of his cross-examination. 18. Another document i.e. registered sale deed executed by plaintiff himself on 3.6.1981, Exhibit-A/4 has also not been considered by the Court below. In the said registered sale deed, the plaintiff himself categorically admitted that there had been partition between the parties and according to the partition in the Anchal office, their names have been mutated. This again corroborates Exhibit-D. 19. Exhibit-C is the registered gift deed dated 2.7.1983 executed by Dhanmatiya Devi in favour of Ajay Kumar, the son of plaintiff and Prabhat Kumar, the son of defendant no.1. In this gift deed in the boundary of plot nos.1127 and 647, the defendant no.1 has been shown in the northern boundary. This again corroborates Exhibit-D. 19. Exhibit-C is the registered gift deed dated 2.7.1983 executed by Dhanmatiya Devi in favour of Ajay Kumar, the son of plaintiff and Prabhat Kumar, the son of defendant no.1. In this gift deed in the boundary of plot nos.1127 and 647, the defendant no.1 has been shown in the northern boundary. Had there been no partition between the parties, there was no occasion for describing the name of defendant no.1 in the northern boundary of the aforesaid two plots. 20. From perusal of the impugned judgment, it appears that the learned Court below observed that at the time of alleged partition in the year 1974, Dhanmatiya was alive but in the partition, she was not allotted any share. Therefore, the learned Court below doubted the partition. It may be stated here that this Exhibit-D appears to be admitted by the plaintiff himself. It is the family arrangement between the parties. 21. In the case of Kale and others vs. Deputy Director of Consolidation, AIR 1976 Supreme Court 807, the Hon’ble Supreme Court has held that “even if one of the parties to the settlement has no title but under the arrangement the other parties relinquished all its claim or title in favour of such person and acknowledges him to be the sole owner then the vesting of title must be assumed and the family arrangement will be upheld and the court will find no difficulty in giving assent to the same.” Therefore, only because no share was allotted to the mother, the family arrangement cannot be held to be illegal and not binding on the parties. Moreover, the mother is not claiming any share. Further, now the mother is dead and Exhibit-D stands admitted. 22. It may be mentioned here that both the parties have filed their respective written arguments. The learned counsel, Mr. Choubey appearing on behalf of the respondent relied upon the decisions of the Apex Court, AIR 1983 Supreme Court 114, AIR 1951 Supreme Court 120 and (2007)4 SCC 163 and submitted that the finding recorded by the Court below should not be lightly interfered with by the appellate court because the trial court has occasion to look to the demeanour of the witnesses in the witness box. According to the learned counsel, the general rule is that appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped. The learned counsel further submitted that the mutation entries in revenue records are not proof of partition. The learned counsel relied upon AIR 1960 Patna 548 on this point. So far the submission of the learned counsel on these points are concerned, there is no dispute. Here, in the present case, the finding recorded by the Court below is not based on admissible evidence and without consideration of the admissible evidence and the admissions. Moreover, the finding recorded by the court below is not based on oral evidence only. Therefore, these decisions relied upon by the learned counsel do not apply in the present facts and circumstances of the case. 23. The application under Order 41 Rule 27 CPC i.e. I.A. No.4098 of 2011 has been filed by the appellant. By supplementary affidavit, the certified copies of the sale deeds executed by the son of the plaintiff namely, Ajay Kumar in the year 2007 and the certified copies of the sale deed executed by the plaintiff himself during the pendency of this First Appeal in April, 2011 has been annexed. So far the two sale deeds of the year 2007 is concerned, the explanation has been given by the appellant that he had no knowledge about these sale deeds earlier and, therefore, in spite of due diligence, he could not have produced the said documents. The learned counsel for the appellant submitted that in view of the provision as contained under Order 41 Rule 27 CPC, the said documents may be admitted in evidence as additional evidence. The learned counsel regarding the sale deed of the year 2011 is concerned, submitted that it is executed recently and, therefore, the court should take notice of the subsequent event. 24. The learned counsel regarding the sale deed of the year 2011 is concerned, submitted that it is executed recently and, therefore, the court should take notice of the subsequent event. 24. In (2008) 8 SCC 511 (North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das), the Hon’ble Apex Court relying upon the 5 Judges Bench decision of the Apex Court in the case of K. Venkataramiah vs. A. Seetharama Reddy, AIR 1963 Supreme Court 1526 held that “the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner has to be considered by the court at the time of hearing of the appeal on merits. The appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C. which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitation as may be prescribed which are prescribed under Order 41 Rule 27 C.P.C.” 25. In view of the above settled principles of law laid down by the Apex Court, in my opinion, here the certified copies of the registered sale deeds which are executed by the plaintiff-respondent himself and his own son are necessary to pronounce judgment in a more satisfactory manner because during the pendency of the suit and during the pendency of this appeal, these sale deeds have been created. These are subsequent events. The court must take notice of the subsequent event. The execution of these sale deeds are admitted by the plaintiff-respondent. There is no denial about the execution by them. Therefore, these sale deeds are marked as Exhibit-A/6, A/7 and A/8. From perusal of these sale deeds, it appears that the son of the plaintiff and the plaintiff himself have admitted that there had been previous partition between the plaintiff and defendant no.1 and according to the said partition, the parties have been mutated and are coming in separate possession. Therefore, these sale deeds are marked as Exhibit-A/6, A/7 and A/8. From perusal of these sale deeds, it appears that the son of the plaintiff and the plaintiff himself have admitted that there had been previous partition between the plaintiff and defendant no.1 and according to the said partition, the parties have been mutated and are coming in separate possession. The plaintiff-respondent intentionally and knowingly suppressed this material before the trial court as well as this court. 26. From the above facts, it appears that the parties are selling the properties separately. The plaintiff in the sale deed of the year 2011 admitted the fact that the properties were exchanged by them from Fagu Mahto. The defendant no.1 also admitted that some properties have been sold to different persons in the year 1961. The plaintiff is selling the property independently. The son of the plaintiff is selling the property independently. Admittedly, the residence is separate, their mess is separate and, their cultivation is separate. Register-II has also been opened in their separate names. In such circumstances, there is presumption of partition. 27. In the case of Arjun Mahto vs. Monda Mahatain, AIR 1971 Patna 215, a Division Bench of this Court has held that separation in food and residence, independent transaction of property, separate possession and enjoyment of properties are by themselves no doubt not conclusive but the cumulative effect of such facts may show that there had been a partition between the brothers. This Division Bench decision has been followed subsequently in AIR 1991 Patna 1 and 276. 28. In paragraph 40 of his deposition, the plaintiff, P.W.7 has categorically accepted the exchange of land with Fagu Mahto but he has included the said land in the Schedule of the plaint. In paragraph 43, he has admitted that plot no.775 has been sold and also admitted that Register-II has been opened in the name of the purchasers but the said land has also been included in the Schedule of the plaint. He has also admitted in paragraph 45 that he has sold land by Exhibit-A/4 on 3.6.1981 but the said land has also been included in the Schedule of the plaint. 29. In view of the above discussion, I find that the learned Court below has not considered the material evidences produced by the defendant-appellant i.e. Exhibit-H series, Exhibit-A/4. He has also admitted in paragraph 45 that he has sold land by Exhibit-A/4 on 3.6.1981 but the said land has also been included in the Schedule of the plaint. 29. In view of the above discussion, I find that the learned Court below has not considered the material evidences produced by the defendant-appellant i.e. Exhibit-H series, Exhibit-A/4. The learned Court below has wrongly discarded Exhibit-D without considering the settled principles of law laid down by the Apex Court. The learned Court below also did not consider the admission made by the plaintiff in his evidence and also in the sale deed executed by him regarding previous partition. The learned court below also did not consider the independent dealings and enjoyment of the property by the parties. The learned court below also did not consider the effect of admission by the plaintiff regarding partition of the gifted property. Had the court below considered these facts and materials, in my opinion, the court below could not have recorded that there was no partition between the parties and there is unity of title and possession. I, therefore, find that there had already been complete partition between the parties in the year 1974 and there is no unity of title and possession between the parties with regard to the suit property. 30. In view of my above finding, I hereby reversed the finding of the learned Court below. Since there has already been partition between the parties and there is no unity of title and possession, the plaintiff is not entitled for partition again. 31. In the result, this First Appeal is allowed with cost of Rs.15,000 to be paid by the plaintiff to the defendant-appellant. The impugned judgment and decrees are set aside. The plaintiff’s suit for the partition is dismissed. The defendant-appellant is at liberty to realize the cost through process of law.