Rajiv Roy, J.—The present First Appeal has been preferred against the order and judgment dated 25.5.2006 and the decree dated 30.5.2006 in Partition Suit No. 246 of 2000 (Sita Devi v/s Most. Luhia Devi and Ors) by which the learned Civil Judge, Senior Division-VI, Samastipur, held that the plaintiffrespondent, Sita Devi is entitled to 1/3rd share of the land as also 4 katha 1 dhur from the 1/3rd share of her mother, Luhia Devi which was gifted to her by a registered deed dated 25.8.2000. 2. The matrix of facts giving rise to present appeal is/are as follows: 3. Sita Devi, plaintiff-respondent preferred Partition Suit No. 246 of 2000 for the partition of the suit land to the tune of 1/3rd share each between her, sister and mother. The details of the suit land are as follows:— [kkrk iq0 [kkrk ua0 [ksljk iq0 [ksljk ua0 jdck pkSgnh 1 203 1051 1388 0-4-12 m0&gseu jk; oks nksfjd jk; n0&Hkksyk Bkdqj iq0&tokgj Hkxr i0&f=os.kh Bkdqj oks Hkksyk Bkdqj 1057 1058 1060 1401 1402 1403 6-5-00 m0&'kaHkw Bkdqj n0&lM+d iq0&gseu jk; i0&'kSy nsoh oks jkeldy jk; 1064 1395 0-3-09 m0&Hkksyk Bkdqj n0&'kEHkw Bkdqj oxS0 iq0&cæh jk; oxS0 i0&v'kQhZ jk; oxSj 1099 1275 0-4-12 m0&f=os.kh Bkdqj n0&jke cgknqj flag iq0&ekyk nsoh i0&jke cgknqj flag 1175 1403 1414 0-4-16 m0&bUnq Bkdqj n0&pUæHkw"k.k Bkdqj iq0&jke lsod Bkdqj i0&VquVqu Bkdqj 1279 1280 1288 1767 1775 0-5-19 m0&v'kQhZ jk; n0&Hkksyk Bkdqj iq0&y{e.k jk; i0&jke uUnu Bkdqj 1-8-8 4. The further case of the plaintiff-respondent, Sita Devi is/was that by virtue of registered gift deed dated 25.8.2000 by her mother Luhia Devi, she is also entitled to 4 kathas 1 dhur from the 1/3rd share of the said Luhia Devi. 5. It is apt to bring on record the genealogy of the family for the proper appreciation of the case:— Brihaspati Rai Nirsan Rawat Bhola Rawat (died in a state of jointness) Muni Lal Rai (died-1985) Lakhi Devi (daughter, not granted any share) Luhia Devi (wife) Sita Devi Pawan Devi 6. 5. It is apt to bring on record the genealogy of the family for the proper appreciation of the case:— Brihaspati Rai Nirsan Rawat Bhola Rawat (died in a state of jointness) Muni Lal Rai (died-1985) Lakhi Devi (daughter, not granted any share) Luhia Devi (wife) Sita Devi Pawan Devi 6. The case of the plaintiff-respondent in the said suit was/were that:— (i) she was married and despite her marriage, she used to take care of her mother; (ii) happy with the said service, her mother Luhia Devi executed deed of gift on 25.8.2000 with regard to 4 kathas 1 dhur out of her 1/3rd share; (iii) accordingly, she got possession of the said land; (iv) during 'Durga Puja', same year, she went to her in-laws house; (v) her another sister, Pawan Devi took advantage of the said absence of the plaintiff and accordingly got executed another deed of gift from Luhia Devi on 16.10.2000 with regard to14 kathas much above the 1/3rd share of the mother; (vi) Muni Lal Rai had left behind only 28 kathas 8 dhurs; (vii) accordingly, Luhia Devi was entitled to only 1/3rd of the share i.e. 8 kathas 2 and half dhurs; (viii) as such, she was not entitled to execute any deed of gift for 14 kathas i.e. half of the land in the backdrop of the fact that she had already executed 4 kathas 1 dhur in favour of the plaintiff vide registered deed dated 25.8.2000; (ix) accordingly, after the knowledge of the fraudulent act of her sister, she demanded partition; (x) the same having been refused, the Partition Suit No. 246 of 2000 was filed. 7. 7. Pawan Devi, the other sister of plaintiff-appellant (Sita Devi) herein appeared and filed her reply with the following submissions:— (i) she had already filed Partition Suit No. 240 of 2000 which is pending; (ii) the gift deed dated 25.8.2000 is in fact a forged and fabricated document; (iii) the genealogy that the plaintiff has provided is wrong and baseless; (iv) Luhia Devi was married to Babuji Rai and the couple was blessed with a daughter, Sita Devi; (v) Babuji Rai died whereafter Luhia Devi along with her daughter, Sita Devi went to her 'Maika'; (vi) subsequently, she got married with Muni Lal Rai from whom Pawan Devi was born; (vii) she was the only child that was born out of that wedlock with Muni lal Rai and as such she is entitled to half of the share of the land; (viii) it is wrong to say that Sita Devi used to take care of her mother; (ix) she fraudulently got the deed of gift executed when her mother was ill; (x) as such, the Partition Suit is fit to be dismissed. 8. The learned Court framed issues, the important amongst them were as follows:— (i) whether the suit is maintainable?; (ii) whether the plaintiff is entitled to 1/3rd share?; (iii) whether the plaintiff is daughter of Muni Lal Rai?; (iv) whether she is entitled for the relief. 9. In support of her case, the plaintiff-respondent put forward witnesses which amongst other included:— P.W. 1,Sita Devi(plaintiff) P.W. 2, Brajeshwar Rai P.W. 3, Hari Lal Rai P.W.-4, Ram Swaroop Rai P.W.-5, Narsingh Rai and P.W.-6, Bir Bahadur Rai. 10. The exhibits that were submitted by the plaintiff-respondent were:— (i) gift deed dated 25.8.2000; (ii) Exhibit-2 – voter list. 11. On the other hand, the defendant-appellant witnesses that were produced were:— DW-1, Kameshwar Rai, DW-2, Suva Lal Rai, DW-3 Ramchandra Rai, DW-4, Ramashray Rai and DW-5, Luhia Devi. 12. The exhibits that were submitted by the defendants were:— (i) Exhibit-A- Gift deed dated 16-10-2000; (ii) Exhibit-B- report of Pleader Commissioner; (iii) Exhibit-C-Field note; (iv) Exhibit-D No claim certificate dated 27-5-86; (v) Exhibit-E and E/1 Rent receipts; (vi) Exhibit-F certified copy of the order passed in Mutation Case No. 799/2000-01; (vii) Exhibit-F/1 certified copy of order of District Judge in Succession Case No. 23/85 dated 25-1-1986; (viii) Exhibit-G-certified copy of Succession certificate of suit no. 23/85; (ix) Exhibit-H-certified copy of the order passed in G.R. No. 1059/2000; (x) Exhibit-I-certified copy of accusation Letter No. 1059/2000; (xi) Exhibit-J-Certified copy of information application dated 10.9.1973 by Muni Lal Rai and; (xii) Exhibit-K-and K/5-certified copy of voter list. 13. The learned Court took following issues for consideration at first instance which included:— (i) whether she is daughter of Muni Lal Rai or Babuji Rai; (ii) whether she is entitled to 1/3rd share in the land; (iii) whether she is in possession of the land. 14. The plaintiffs witnesses that were examined included PW-1, Sita Devi-plaintiff-respondent herein and she supported the case that was put forward by her in the plaint. 15. PW-2, Brajeshwar Rai is related to the family who gave the statement that the Muni Lal Rai died leaving behind his widow and two daughters (Sita Devi and Pawan Devi). Subsequently, the family members came in physical possession of the land of Muni Lal Rai. It is/was his further statement that the Luhia Devi gifted 4 kathas 1 dhur out of her 1/3rd share to Sita Devi as she used to take care of her. 16. PW-3, Hari Lal Rai is the villager and he also toed the line of PW-2 stating therein that the two daughters and widow were left behind by Muni Lal Rai. He further supported that the mother, Luhia Devi gifted 4 kathas 1 dhur to Sita Devi. 17. The Defendent-witnesses that were examined were:— (i) DW-1, Kameshwar Rai, husband of the defendant-Pawan Devi who made statement that earlier Babuji Rai had married Luhia Devi from whom Sita Devi was born; (ii) Babuji Rai died and subsequently, Luhia Devi married Muni Lal Rai from whom his wife, Pawan Devi was born. It was his further statement that from the said wedlock, only Pawan Devi was born and no other child was born. 18. The other witness that was put forward by the defendant was DW-4, Ram Swaroop Rai who claimed to be agnate of late Muni Lal Rai. According to him, three children were born out of the wedlock of Muni Lal Rai with Luhia Devi. 19. This according to the learned Court was contrary to the statement of the DW-1 that Pawan Devi was the only child that was born from her parents; 20. The most important witness was D.W.-5, Luhia Devi, the mother herself. According to him, three children were born out of the wedlock of Muni Lal Rai with Luhia Devi. 19. This according to the learned Court was contrary to the statement of the DW-1 that Pawan Devi was the only child that was born from her parents; 20. The most important witness was D.W.-5, Luhia Devi, the mother herself. She also accepted that three daughters were born out of the wedlock with Muni Lal Rai. It was her further statement that she gifted 14 kathas to Pawan Devi. Further, her husband died 15 years ago. 21. The learned Court took note of the fact that in her entire statement, she did not utter a single word that Sita Devi has born out of the wedlock with Babuji Rai. She also accepted that Sita Devi is her daughter. She further did not denied the gift deed and merely submitted that this may have been done when she was ill. 22. Taking into account all the aforesaid facts the learned Court held that:— (i) the consistent stand of the PWs are that Luhia Devi married Muni lal Rai and both Sita Devi and Pawan Devi are their children; (ii) Muni Lal Rai left behind 28 kathas 8 dhurs and as such the mother and the two daughters are entitled to 1/3rd share; (iii) the contradictory statement of the defendant witnesses clearly shows that Pawan Devi was not the only child who was born out of the wedlock; (iv) Luhia Devi did not alleged that the gift deed of Sita Devi is a forged and a fabricated document; (v) as such the plaintiff beside her 1/3rd share is also entitled to 4 kathas 1 dhur which was given to her by Luhia Devi by gift deed; (vi) subsequently, Luhia Devi also executed gift in favour of Pawan Devi and as such whatever land is left from her share, Pawan Devi can be entitled to only that part of the said land. 23. Accordingly, the learned Court chose to allow the Partition Suit No. 246 of 2000. 24. Simultaneously, the learned Court took up the Partition Suit No. 240 of 2000 (Most. Luhia Devi and Ors v/s Sita Devi) preferred by the appellants herein and dismissed the same on 25.5.2006 itself after recording its finding. The same has been brought on record by way of Annexure-I to the present appeal. 25. 24. Simultaneously, the learned Court took up the Partition Suit No. 240 of 2000 (Most. Luhia Devi and Ors v/s Sita Devi) preferred by the appellants herein and dismissed the same on 25.5.2006 itself after recording its finding. The same has been brought on record by way of Annexure-I to the present appeal. 25. Heard learned counsels for the respective parties. 26. Learned counsel for the appellants submit that:— (i) the lady, Sita Devi was not the daughter of Muni Lal Rai, rather she was daughter of Babuji Rai with whom Luhia Devi had earlier married and only after his death, she got married to Muni Lal Rai from whom only Pawan Devi was born; (ii) the deed of gift was obtained by Sita Devi by fraud; (iii) Luhia Devi did not supported the plaintiff version; (iv) the Partition Suit No. 240 of 2006 (preferred by the appellants herein) should not have been taken up and dismissed on the same day; (v) the plaintiff had to prove that she is the daughter of Muni Lal Rai; (vi) as she failed to do so, the finding arrived at by the learned Court is perverse and as such, the order is fit to be set aside; (vii) the learned Court failed to consider the evidences of the DW-1 and DW-5 properly. 27. Learned counsel for the appellants in support drawn attention to an order of Patna High Court in F.A. No. 127 of 2002 (Lalan Dusadh @ Lallan Dusadh and Ors vs. Ram Narain Dusadh and Ors) disposed of on 6.4.2011 to submit that it was for the plaintiff to prove her case. 28.The learned counsel for the respondent, on the other hand pleaded that:— (i) Sita Devi was daughter of Luhia Devi and Muni Lal Rai; (ii) the mother and the two daughters being the heirs of late Muni Lal Rai were entitled to 1/3rd share; (iii) she used to take care of her mother and pleased with her service, the gift deed was executed on 25.8.2000 with regard to 4 kathas 1 dhur out of her 1/3rd share; (iv) she was in physical possession of the 1/3rd share as also the 4 kathas 1 dhur that was gifted by her mother; (v) the finding arrived at by the learned Court is just and proper; (vi) as such the present appeal is fit to be dismissed. 29. 29. Having heard the respective counsels and going through the records of the case, the considered view of this Court is/are that:— (i) the question before the learned Court below was whether the lady, Sita Devi is daughter of Muni Lal Rai or not; (ii) the Court examined the PWs and DWs and came to a definite finding that so far as the statement of the PWs are concerned, they were consistent on the fact that both Sita Devi and Pawan Devi are daughters of Muni Lal Rai and Luhia Devi; (iii) on the other hand, the Defendant witnesses made contradictory statement inasmuch as while DW-1 stated that only Pawan Devi was born out of wedlock, as per the statement of another witness, three children were born out of the said wedlock; (iv) the learned Court further took into account the fact that even the DW-5, Luhia Devi, mother of both Sita Devi and Pawan Devi talked about her marriage to Muni Lal Rai but has not made any categorical statement that Sita Devi is not the daughter of Muni Lal Rai; (v) further, Luhia Devi also did not disputed the authenticity of the gift deed dated 25.8.2000 but merely stated that it may have been taken when she was ill; (vi) the learned Court further took into account the fact that the said Muni Lal Rai left behind 28 kathas 8 dhurs of land which the mother and the two daughters have to be given in equal share of 1/3rd each; (vii) accordingly, the learned Court held that as the plaintiff has proved that she is daughter of Muni Lal Rai and Luhia Devi and defendant failed to controvert it despite producing number of witnesses and putting on record number of exhibits, it came to a definite conclusion that not only she is entitled to 1/3rd of the share but is also entitled to 4 kathas 1 dhur which has been gifted to her through registered deed by Luhia Devi, mother out of her 1/3rd share. 30. The learned counsel for the appellant during his submission too failed to show any document in support of his contention that Sita Devi was born out of wedlock of Luhia Devi with Babuji Rai. 31. 30. The learned counsel for the appellant during his submission too failed to show any document in support of his contention that Sita Devi was born out of wedlock of Luhia Devi with Babuji Rai. 31. Further, the citation of F.A. No. 27 of 2002, Lalan Dusadh @ Lallan Paswan and Ors v/s Ram Narain Dusadh and Ors does not come to the appellant's rescue as the plaintiffappellant had succeeded in proving herself to be the daughter of Luhia Devi and Muni Lal Rai which the defendants-appellants failed to counter and thus the learned Court rightly held that Sita Devi is the daughter of Muni Lal Rai and as such entitled to 1/3rd share. 32. Thus, having gone through the facts and circumstances of the case and after hearing the rival contentions of the respective parties and having taken into account all the aforesaid facts, this Court does not find any error in the findings arrived at by the learned Court. 33. The appeal thus fails and is accordingly dismissed.