JUDGMENT : This appeal has been filed against the judgment and decree passed by the learned Additional District Judge (F.T.C.), Bolangir at Patnagarh in R.F.A. No.70/16 of 2005-07 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Patnagarh in Title Suit No. 56 of 2000. The appellant as the plaintiff had filed the suit for declaration of her right, title and interest over the suit land as described in schedule ‘B’ of the plaint and for confirmation of her possession over it. The suit having been dismissed, as unsuccessful plaintiff this appellant had filed the first appeal under section 96 of the Code of Civil Procedure. That having been dismissed now the present move is before this Court by filing the second appeal under section 100 of the code. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that the properties described in schedule ‘A’ of the plaint is the ancestral property of the parties. In the year 1940 after the death of common ancestor Chitra Bhoe, his two sons, namely, Narayan and Sasthi partitioned schedule ‘A’ property amicably between them and divided it in two equal shares wherein schedule ‘B’ property came to be allotted to Sasthi Bhoe, the father of the plaintiff. Accordingly he continued to possess the same when the rest of schedule ‘A’ land remained in possession of the Narayan Bhoe, the father of the defendants. So, it is said that upon the death of Sasthi, the plaintiff being the only heir as the daughter possessed schedule ‘A’ land through Narayan Bhoe and others since at that time she was only aged about three years. However, it is next stated that after the marriage, the plaintiff and her husband possessed schedule ‘A’ land and they are living in the house left by her father, which stands on a part of the suit land. Therefore, schedule ‘B’ land stood recorded in the name of plaintiff and Narayan Bhoe jointly and it was so just because there was no document evidencing the partition. Though the shares of the parties were distinct and separate, they however, are paying rent jointly. Therefore, schedule ‘B’ land stood recorded in the name of plaintiff and Narayan Bhoe jointly and it was so just because there was no document evidencing the partition. Though the shares of the parties were distinct and separate, they however, are paying rent jointly. Plaintiff in order to have separate record of the land in her name requested the defendants to give their concurrence giving weightage to the prior partition. However, there came no nod from the side of the defendants. So, the suit has been filed. 4. The defendants coming to contest the suit averred that the suit land is the joint family property of the parties coming from the hands of the common ancestor devolving upon the plaintiff’s father. It is stated that Sasthi, the father of the plaintiff died in the year 1950 and Narayan died in the year 1980. Sasthi being aged about three years at the time of the death of her father, she remained under Narayan Bhoe’s guardianship as her mother got remarried. Narayan and his wife brought up the plaintiff and finally gave her in marriage with Gauranga. It is pleaded with vehemence that there was never any partition with the joint family properties between Sasthi and Narayan at any time during their lifetime and all along they were staying joint both in mess and estate as one unit. They denied the separate possession of lands described in schedule ‘B’ during his lifetime as also that of Narayan with regard to the land under schedule ‘A’ excluding schedule ‘B’ land. It is their case that they have been in possession of the entire schedule ‘A’ land. It is stated that plaintiff in view of the dissention in the family of her husband shifted to village Kansapal and stayed there for about 10 to 15 years in the house of her maternal uncle of her husband and then for about six years more in the house of one Kadei. Seeing this, the defendant accepting the request of the plaintiff provided her with a house site in the suit village and allowed her with family to stay there. To sum up, it is the case of the defendant that they are absolute owners in possession of the schedule ‘A’ land which includes schedule ‘B’ land and the plaintiff has no right, title, interest and possession over the same. 5. To sum up, it is the case of the defendant that they are absolute owners in possession of the schedule ‘A’ land which includes schedule ‘B’ land and the plaintiff has no right, title, interest and possession over the same. 5. On the above rival pleading, the trial court framed four issues. Going to answer the crucial issue with regard to partition between Narayan and Sasthi, upon analysis of evidence, both oral and documentary, the finding has been that the two brothers during their lifetime had not separated and were under one mess and estate. The next issue as regards possession of the schedule ‘B’ property by the plaintiff has also been answered in the negative. Practically answers to these issue has resulted in the dismissal of the suit. The lower appellate court being moved by the unsuccessful plaintiff who suffered from the order of the dismissal of the suit has affirmed all those findings. The order of dismissal of the suit receiving confirmation in the first appeal, are now impugned in this second appeal in further seeking the reliefs as prayed for. 6. The appeal has been admitted on the following substantial question of law: “Whether the courts below instead of dismissing the suit in its entirety ought to have passed a preliminary decree for partition of schedule ‘A’ property amongst the parties in accordance with their entitlement scrutinizing the evidence and by arriving at a satisfaction therefrom that there was severance of status of the joint family between the father of the plaintiff and his brother?” 7. Learned counsel for the appellant contends that the appreciation of evidence on record with regard to partition between Sasthi and Narayan as averred by the plaintiff has been made in a perverse manner and if such evidence is appreciated properly, a finding on preponderance probability can well be rendered that there was such partition. Thus, he contends that in that situation even if the courts below can be said to have been right in declining the plaintiff to be granted with the relief of declaration of her title in respect of schedule ‘B’ property, a preliminary decree for partition of Schedule ‘A’ property could have well been passed entitling the plaintiff half share over the same and the defendant with the rest half as there was no such other legal impediment. 8. 8. Learned counsel for the respondents refuting the above contention submits that such concurrent finding of fact that there was no partition between the Sasthi and Narayan being based on just and proper appreciation of evidence as made by the trial court and also independently upon assessment being recorded by the lower appellate court, the scope no more remains to interfere with the same even if this Court possibly takes a different view and that cannot act as the supplant. For the purpose, he has taken the pain of placing the oral evidence let in from the side of the plaintiff in further showing that the documentary evidence wholly negate a case of partition between the two brothers. 9. Admittedly, the parties are Scheduled Tribe and as such are governed by the Mitakshara School of old Hindu law and the provisions of Hindu Succession Act do not apply to them. The position under the old Hindu law is that the two sons coming to succeed the coparcenery property, they succeed as such with the right of survivorship. On the death of one without leaving any male heir, the properties pass on to the surviving male heir of the joint family and where there remains the widow of the deceased’s brother she stands to inherit the interest that her husband was having in the coparcenery property to the extent of his share. But that remains with her as the widow’s estate, she having limited right over the same till her death. Under the provisions of Hindu Women’s Right to Property Act, she has the right to claim a partition. But that share she will be getting over the property would still continue as the limited estate in her hand and upon her death, it would pass to the heirs of her husband, called the reversioners. Here that is not the case of the plaintiff as she claims that her father died leaving her as the only heir when the defendant’s case is that the mother of the plaintiff shortly after the death of Sasthi remarried and went elsewhere leaving the plaintiff under the care, custody and guardianship of Narayan, the paternal uncle. Here that is not the case of the plaintiff as she claims that her father died leaving her as the only heir when the defendant’s case is that the mother of the plaintiff shortly after the death of Sasthi remarried and went elsewhere leaving the plaintiff under the care, custody and guardianship of Narayan, the paternal uncle. It is pertinent to state here that as per the old Hindu law in so far as the properties of a Hindu male governed by Mitakshara School is concerned, the heirs as described in article 43 come to inherit the property of said Hindu male upon his death and in the absence of sons and others in the entries of said article proceeding to the entry of the daughters, the daughters come as heirs. But so far as the coparcenery property is concerned, on the death of one brother, leaving no son and widow, the property goes by survivorship to the other male members of the family including the sons of the deceased’s brother then forming the coparcenery with their interest getting redefined accordingly. We are here concerned with the case where Sasthi died leaving behind her only daughter and her brother was then living and the property had come from the hands of the father. So this plaintiff being the daughter would not get the right over the coparcenery property and only on one condition she would be coming to succeed that if there had been a partition between two brothers which would be taken as to have been so made by giving a go-bye to the rule of survivorship. This partition need not always be in metes and bounds. It is sufficient if a case is established that during the lifetime, two brothers had separated from each other by an unequivocal declaration of that intention to have so separated. This can be gathered from various circumstances that they thereafter began to live under separate mess, cultivated lands separately as of their shares by approximation may not be strictly in accordance with their entitlement; enjoyed the usufructs separately from out of the land in their respective possession, separately contributed for payment of rent etc. This can be gathered from various circumstances that they thereafter began to live under separate mess, cultivated lands separately as of their shares by approximation may not be strictly in accordance with their entitlement; enjoyed the usufructs separately from out of the land in their respective possession, separately contributed for payment of rent etc. It has also been the settled position that if upon the death of one of the brothers, his widow files a suit for partition as per the right available under law being so conferred with the said right under the provisions of Hindu Women’s Right to property Act, said conduct on her part and the action of filing the suit would cause severance of status and that suit can be pursued even by her daughter/daughters who survives/survive the widow where she/they would be entitled to get the share as that of her/their father being heir/heirs of her/their father, in the absence of any son and other heirs as indicated in the entries of article 43 proceedings one after the other. 10. Adverting to the case thus here the plaintiff can only succeed in the suit either in getting the declaration as prayed for or even let us say alternatively for a preliminary decree for partition as the case may be, only in the event the court records the finding that there was partition between her father and paternal uncle. The burden of proof undoubtedly lies upon the plaintiff. So for the purpose when a look is given to the evidence let in by the plaintiffs, it is seen that she has stated at para-6 of her deposition that there was an oral partition between her father and uncle in the year 1940, which part of her evidence is not acceptable in view of her tender age even accepting the age that she has stated to be 60 years in the year 2005. However, that itself in my considered view is not enough to conclude against the case of partition. This is further required to be examined by going through other evidence. She has stated that at the time of death of her father she was three years old. However, that itself in my considered view is not enough to conclude against the case of partition. This is further required to be examined by going through other evidence. She has stated that at the time of death of her father she was three years old. So the possession of the property by her from the beginning since the time of her death is out of question and that apart when admittedly she thereafter remained with Narayan, her paternal uncle, the possession of the land by Narayan is rather natural and believable. Her evidence is simply on the score that she has been cultivating the land in possession of her father. During cross-examination, however she has gone to give a death blow to her case by stating that when her father died, Narayan and her father were joint in property. With such evidence when P.W.2 comes to say that plaintiff possessing the land separately as it was in possession of her father after the death of her father, the same is not believable. Besides the same, the witness has no land nearby having extremely remote possibility of seeing and memorizing the factum of possession when also he has clearly stated to have never seen the father of the plaintiff. On the evidence of other witness P.W.3, the less said the better as he has even no idea on that score and having never seen the plaintiff’s father possessing any land separately during lifetime besides stating the other facts which rather negate the case of partition. Admittedly the record stands jointly and that does not also provide any sort of support to a case of partition. In view of the aforesaid, I am not in a position to accept the submission of the learned counsel for the appellant that the concurrent finding negating the claim of partition as pleaded by the plaintiff suffers from perversity or even to be a flawed one. For the aforesaid discussion and reasons, when the concurrent finding of fact that there was no partition between the father of the plaintiff and the father of the defendant holds the field, the plaintiff is found to have been rightly non-suited. The substantial question of law is accordingly answered against the appellant. 11. Resultantly, the appeal stands dismissed. In the facts and circumstances, no order as to cost is passed.