JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Ajay Shankar, learned counsel for the appellants in Second Appeal No. 04 of 2005 and Mr. S.K. Sahay, learned counsel for the appellant in Second Appeal No. 33 of 2005, Mr. Lakhan Chandra Roy, learned counsel for respondent no. 1 and Mr. Arvind Kumar Choudhary, learned counsel for respondent no. 2. 2. Both the second appeals have been filed for setting aside the judgment and decree passed by the learned 3rd Additional & District Judge (F.T.C.) Jamtara dated 30.11.2004/16.12.2004 in Title Appeal No. 7 of 1992/12 of 2004 by which he has been pleased to allow the appeal filed by defendant-1st party and set aside the judgment and decree passed by the learned Sub Judge, Jamtara in Title Suit No. 36/1980 dated 10.02.1992/ 20.02.1992. 3. The plaintiff instituted the suit for partition against defendant no. 1, defendant 2nd party and defendant 3rd party for a preliminary decree for 1/4th share over A, B, C, D, E, F and G schedule properties of the plaint in favour of the plaintiff and against the defendants as well as for a final decree as per preliminary decree be prepared thereby appointing Amin Commissioner and for delivery of possession over the decreetal lands through process of the court and for a permanent injunction restraining the defendant 3rd party not to disturb the possession of the plaintiff over any portion of the suit land. It was stated in the suit that the recorded tenant Larulal Tiwari had landed properties in several mouzas their description has been given in Schedule A to G of the plaint over an area measuring of 118 acres. The said recorded tenants of Larulal Tiwari had only two daughters namely Sindhubala Davi and Kapur Bala Davi. The Larulal Tiwari died in the year 1950 leaving behind his widow namely Sumitra Devi and one daughter Kapur Bala and grand son namely Ram Bharosh Ojha and grand daughter Gulab Devi as Sindhubala Devi predeceased to her father-Laru Lal Tiwari. The said recorded tenants of Larulal Tiwari had only two daughters namely Sindhubala Davi and Kapur Bala Davi. The Larulal Tiwari died in the year 1950 leaving behind his widow namely Sumitra Devi and one daughter Kapur Bala and grand son namely Ram Bharosh Ojha and grand daughter Gulab Devi as Sindhubala Devi predeceased to her father-Laru Lal Tiwari. The further case of the plaintiff was that since the Laru Lal Tiwari had no sons, hence, he kept his two daughters, in his house alongwith his her husband namely Dharanidhar Ojha being the husband of Sindhubala Devi and Shankar Prasad Tiwari daughter and son and of Sindhubala Devi took birth at village Dhanjori and during their minority, their mother Sindhubala died and hence they have been looked after by their grandmother Sumitra Devi and mausi Kapurbala Devi. The further case of the plaintiff was so long Laru Lal Tiwari was alive the entire properties was in his exclusive possession and after his death his widow Sumitra Devi succeeded to the entire estate became absolute owner of the same after passing of Hindu Succession Act, 1956. It has further been stated in the plaint that after the death of Sindhubala Devi, her husband Dharanidhar Ojha brought his second wife into his house at village Dhanjori. From his second wife, five sons only took birth. The plaintiff has been married with on Indra Narayan Mishra of village Gaura in 1952 and Rambharosh Ojha being the son of Sindhu Bala Devi had been married with Putubala Devi in the year 1967 and after that Rambharosh Ojha became traceless and there is no trace found, though serious search is being made. It was the further case of the plaintiff that after the death of Larulal Tiwari relation between Dharanidhar Ojha and Shankar Prasad Tiwari became strain, so Sumitra Devi being the absolute owner of the suit land separated both of them thereby allowing some lands to be retained for maintenance of Rambharosh Ojha and Gulab Devi as both are minor at that time. Sumitra Devi being the absolute owner of the entire lands had died in January 1978 leaving her one daughter Kapurbala Devi and one son and daughter namely Rambharosh Ojha and Gulab Devi being the sons and daughters of her predeceased daughter-Sindhubala Devi as her next heirs and successors. Sumitra Devi being the absolute owner of the entire lands had died in January 1978 leaving her one daughter Kapurbala Devi and one son and daughter namely Rambharosh Ojha and Gulab Devi being the sons and daughters of her predeceased daughter-Sindhubala Devi as her next heirs and successors. It was further case of the plaintiff that after the death of Sumitra Devi relation between Shankar Prasad Tiwari and Dharanidhar Ojha became too strain resulting in several litigation. It was further stated in the plaint that the lands of Dharanidhar Ojha was entrusted to cultivate the land for the maintenance of Gulab Devi and her brother Rambharosh Ojha as both were the minors but subsequently Dharanidhar Ojha started mis-appropriating the major share of the produce which forbidden by the plaintiff and started cultivating the same with the help of her husband Indra Narayan Mishra. It was further case of the plaintiffs that Dharanidhar Ojha started quarrel with the plaintiffs as well as her husband with respect to the plot in question. In 1979, Dharanidhar Ojha again started creating trouble in the matter of harvesting for which a proceeding u/s 144 Cr.P.C. had also been enunciated and in the said proceeding Dharanidhar Ojha had filed show-cause claiming their prescriptive right, title and interest over the plot in question with a basis of forged and fabricated documents. The plaintiff's further case was that during the lifetime of Sumitra Devi, some lands were allotted to Dharanidhar Ojha only in lieu of maintenance of present plaintiff and her brother as both were minors hence the possession of Dharanidhar Ojha over the said plots shall be deemed to be permissive possession. The show-cause filed by Dharanidhar Ojha in proceeding u/s 144 Cr.P.C. as well as 107 Cr.P.C. claiming there independent claim over the suit land against the interest of the plaintiff and defendant no. 1 and as such Dharanidhar Ojha along with his son from second wife have been impleaded as defendant 3rd party in the suit for declaration that they have got no right over any portion of the suit property and also for permanent injunction against them. Since Rambharosh Ojha became traceless for many years and hence his wife Pratibala Devi being the sole heir of her husband has been impleaded as defendant 2nd party. Since Rambharosh Ojha became traceless for many years and hence his wife Pratibala Devi being the sole heir of her husband has been impleaded as defendant 2nd party. The properties described in Schedule-A to E are the Ejmal landed property residential house as shown in Schedule-F and Schedule-G described for Ejmal trees. The plaintiff's further case is that to avoid litigation, she approached defendant no. 1 for amicable portion of the properties in suit in the month of March, 1980 but defendant no. 1 expressed her inability and as such finding no option the plaintiff filed the suit for partition of the suit properties having 1/4th share in the suit land along with other reliefs. 4. The defendants were summoned filed written statements separately. In course of the proceeding of the suit some other defendants also intervened and they were made intervenor defendants Ist party and IInd party respectively. Defendant No. 1 filed written statement separately, challenging the maintainability of the suit alleging inter alia that the suit is bad for various defect. It is pleaded that Larulal Tiwari was sonless he has settled with his daughters and their husbands at his place and in order to avoid future dispute and for maintaining peace and harmony he had effected a family settlement of Kartick 1352 B.S. By the said family settlement he partitioned all his properties among his two daughters and made provisions for maintaining for his wife. Since then the parties began to possess their respective shares separately. Larulal Tiwary died in 1950 and widow died in 1978. Their shradh were performed out of the expenses contributed by the branches of Sindhu Bala and Kapur Bala. The deed of family settlement executed on 15th Kartick 1352 B.S. Laru Lal Tiwari is unfortunately missing. On the death of Sumitra Devi the properties were partitioned equally between the two branches. Due to special love and affection, her father had given her plot nos.86 and 89 of Mouza Dhanjori apart from the other lands allotted to her. Ultimately this defendant is in possession of two plots and half of the rest of the suit properties. Defendant No. 1, her husband and children constructed two storied pucca and other houses, including a pucca well on plot no. Ultimately this defendant is in possession of two plots and half of the rest of the suit properties. Defendant No. 1, her husband and children constructed two storied pucca and other houses, including a pucca well on plot no. 80 of mouza Dhanjori and planted large number of trees in the said plot, out of their separate fund and income without any objection from any corner. This family settlement earlier as stated above is binding upon the parties in the present suit is not maintainable. Alternatively, it was also pleaded in the case that the family settlement is not accepted that in that the circumstances the defendant No. 1 is entitled to 1/2 share. However it is stated that there is no question of fresh partition as there was already partitioned and family settlement in between the parties. 5. Defendant No. 3 filed a separate written statement challenging the maintainability of the suit alleging inter-alia that the suit is bad for nonjoinder and mis-joinder of necessary parties. Ram Bharosh is alive and his wife defendant No. 2 has been wrongly pleaded in the present case. No process has been served upon defendant No. 2. Ram Bharosh is still alive and he occasionally comes to village Dhanjori as well as house in different village. He is however to some extent detached himself from family life and has been moving with some 'Babajis' at different place of pilgrimage in the country apparently in search of God. This defendant and his other relation have seen him even about a year ago in Bhagalpur and other places. It was further stated that in the extent of share of claim of the plaintiff is wrong. She cannot be entitled to any share in the house as given in Schedule F and G inasmuch as these defendants has constructed pucca building over the same out of their personal income and has grown trees over the same. This defendant has asserted that Laru Lal Tiwari got his eldest daughter Sindhu Bala married with defendant No. 3 in 1935 and immediately after marriage he transfer about 41-52 acres of land belong to him in five mouzas in favour of these defendants. So that the latter and his wife and children could sustained themselves from these lands. He also transferred about some area of lands at some time in favour of son-in-law Shankar Prasad Tiwary. So that the latter and his wife and children could sustained themselves from these lands. He also transferred about some area of lands at some time in favour of son-in-law Shankar Prasad Tiwary. Since both his daughters were married on the same day and both the sons in laws were kept by him permanently in his house. The above arrangement was effected by him by way of a family settlement to avoid bickering in the family. Larulal Tiwary had a total area of about 118.00 acres of land in five mouza. After transferring 82/83 acres of land in favour of his both son-in-laws, he further transferred 4.19 acres of land bearing plot nos. 28,29,33,34 and 27 of mouza Dhanjuri in favour of his agnates Ras Bihari Tiwari and others. He kept remaining lands with himself and his wife. Larulal Tiwari had became much old at the time of marriage of his two daughters and he had no chance of begetting son and hence he treated his son-in-laws as his sons and out of affection he had transferred the lands. The defendant started possessing the lands allotted to him independently as his own right to the knowledge of all and he possessed then adversely to Larulal Tiwari and by 1948 he acquired a prescriptive title and an occupancy right therein. The defendant's wife Sindhu Bala died in 1944. Thereafter Larulal got again married with the daughter of his Sala Markhan Choubey and continued to treat him as his near and dear one. It is pleaded that after the defendant's second marriage Larulal found that there might be some dispute between his two sons-in-law after his death and in order to avoid the same he executed a family settlement paper along with his wife Sumitra Devi on 15th Kartick 1952 B.S. corresponding to November, 1945 in favour of this defendant and defendant No. 1 Kapur Bala in respect of the suit properties. Through the said family settlement paper, 4.19 acres of land allotted to Rash Bihari Tiwary and others was confirmed and some lands being plot no. 409, 221, 224, 110 of mouza Dhanjuri and plot no. 363 comprising a total area 30.11 acres were allotted to Sumitra Devi and remaining suit plots herein were left with this defendant no. 1 Kupur Bala in equal share as before. 409, 221, 224, 110 of mouza Dhanjuri and plot no. 363 comprising a total area 30.11 acres were allotted to Sumitra Devi and remaining suit plots herein were left with this defendant no. 1 Kupur Bala in equal share as before. In 1973-74 a ceiling case bearing L.C.C. No. 46/445 of 1973-74 was started in the court of Land Reforms Deputy Collector. This defendant as well as Shankar Tiwari both filed objection on the basis of the family settlement effected by Larulal Tiwai and papers were also produced before the court and after inquiry it was dropped on 6.2.1976. This defendant has all along been paying the rent for the lands allotted to him through paper. After the death of Sumitra Devi her 30.11 acres of land devolved upon defendant No. 1 as well as Ram Bharosh and plaintiff Gulab Devi in which the plaintiff has got share. 6. Intervenor defendant 1st party filed written statement challenging the maintainability of the suit alleging inter alia that Laru lal was the cousin brother of Asharam Tiwary predecessor in interest of these interevenor defendants. Larulal having no male issue and having loss hope of having a son develop great love and affection with his nephew Rash Bihari Tiwary and wished that Rash Bihari should performed the last rites and as such he permanently settled 4.19 decimals of land in plot no. 28, 29, 33 and 34 only a few years before last survey. Larulal permanently settled these plots with his nephew and since then he has been continuing in possession and so also this defendants was the heirs of late Rash Bihari Tiwary. The suit land has been acknowledged by Larulal in the settlement which was entered into between defendant No. 1 Kapur Bala and Rambharosh which has been witnessed by member of villagers. There are certificate and other papers to show regarding right, title and interest of this defendants on these plots and as such plaintiff cannot have any claim in respect of these plots. 7. There are certificate and other papers to show regarding right, title and interest of this defendants on these plots and as such plaintiff cannot have any claim in respect of these plots. 7. Intervenor defendant 2nd party has come forward with a specific case by filing written statement alleging inter alia that one Nasir Mian was working in the house of Larulal and due to paucity of lands Nasir Mian get Kurfa settlement of the said plot claimed by intervenor defendant 1st party and out of love and affection, Larulal granted settlment by way of Kurfa with regard to four plot on 10th Pous 1342 B.S. in favour of Nasir Mian at the rate of Rs.15/ per year since the said Kurfa Nasir Mian came in possession of the lands and cultivated paddy thereon. After the death of Nasir Mian his sons Makbul Mian, Budhu Mian and Manager Mian acquired right title, and interest and after their death these defendants with the co-sharers are in actual cultivating possession of the same. They have perfected right, title and interest over the same and now the plaintiff nor defendant 1st party can have any right, title and interest in respect of these four plots. 8. Title Suit No. 36/1980 was instituted in the above background and the learned trial court has framed 11 issues to decide the suit. The learned trial court has been pleased to decree the suit in part and out of 113.90 acres of the suit lands, the plaintiff was entitled to 1/4th share as described in Schedule A, B, C, D and E of the plaint, however she was not held to be entitled to any share in the houses constructed by other defendants as described in Schedule-E and trees as described in Schedule G of the plaint. Defendant No. 1 Kapur Bala was entitled to 42.96 acres of land and remaining land given in schedule of the plaint will be allotted to defendant no. 3. An Amin Commissioner was also directed to be appointed on the prayer of any of the parties to carve out the shares of the respective parties, who while allotting the share will consider and will not disturb the actual convenient possession of any of the parties without giving reasons. In this way, the suit was decreed by the learned trial court. In this way, the suit was decreed by the learned trial court. Aggrieved with this decree passed in the suit, the 1st defendant filed the appeal which was numbered as Title Appeal No. 7 of 1992/12 of 2004 which was decided vide judgment dated 30.11.2004 by the learned 3rd Additional District & Sessions Judge, F.T.C. Jamtara. The learned appellate court has been pleased to allow the appeal modifying the share in favour of the parties and has been pleased to set aside the judgment of the learned trial court passed in Title Suit No. 36/1980 and held that the appellant-defendant 1st party is entitled for a share of eight annas in the property of Larulal Tiwari and the plaintiff is entitled for 1/4th share over the properties of 118.09 acres and not from 113.90 acres and defendant no. 3 is not entitled for having any share over the properties of Larulal Tiwari and respondent no. 10 has also not perfected their title over 4.19 acres and it has also been held that the appellants in said title appeal are entitled 1/2 share over properties of an area measuring 118.09 acres and the plaintiff is entitled 1/4th share over it and rest are for the next heirs i.e. wife of Bharosh Ojha being respondent no. 2 in the said title appeal. In this way, appeal was allowed with the said distribution of the share amongst the parties. 9. Aggrieved with the judgment of the learned appellate court, defendant 3rd party has filed Second Appeal No. 04 of 2005 and intervenor defendant 1st party has filed Second Appeal No. 33 of 2005. 10. Second Appeal No. 04 of 2005 was admitted vide order dated 15.09.2006 on following substantial questions of law: “(1) Whether the appellate Court below while reversing the finding of the trial Court, has correctly appreciated the admissibility of Ext.B which is the main document upon which the appellants rely? (2) Whether the appellate Court below while reversing the judgment of the trial Court has correctly met the reasonings supported by correct proposition of law?” 11. Second Appeal No. 33 of 2005 was admitted vide order dated 15.09.2006 on the following substantial questions of law: “(1) Whether the appellate Court below while reversing the finding of the trial Court, has correctly appreciated the admissibility of Ext.B which is the main document upon which the appellants rely? Second Appeal No. 33 of 2005 was admitted vide order dated 15.09.2006 on the following substantial questions of law: “(1) Whether the appellate Court below while reversing the finding of the trial Court, has correctly appreciated the admissibility of Ext.B which is the main document upon which the appellants rely? (2) Whether the appellate Court below while reversing the judgment of the trial Court has correctly met the reasonings supported by correct proposition of law?” 12. Mr. Sahay, learned counsel for the appellant in Second Appeal No. 33 of 2005 addressed the law points simultaneously as both the law points are interlinked. He submits that the judgment of learned appellate court is vitiated for negativing the claim of the intervenor defendant 1st set, on 4.19 acres of land despite the fact that the plaintiff and defendant no. 1 do not deny his claim rather defendant no. 3 supports it. He further submits that the judgment and decree of the learned appellate court is vitiated due to non-consideration of such vital evidence that in the Land Ceiling Case No. 46/445 of 1973-74, all the heirs of Laru Lal Tiwary had filed objection supporting the claim of the appellant over 4.19 acres of land on the basis of family settlement of Laru Lal Tiwary. He also submits that the learned appellate court has not taken care of the proceedings of land ceiling case and has reversed the finding considering that Ext.-B is not genuine document which is erroneous as Ext.-B was the family settlement. He further submits that even by way of adverse possession, the appellant is entitled for the suit property. He also submits that even law of estoppel come into play when the possession in favour of the appellant was not disputed at the earliest by the respondents. To buttress this argument, he relied upon the judgment passed in Kale and Others vs. Deputy Director of Consolidation and Others, AIR 1976 SC 807 . On these grounds, he submits that the law points framed by this Court may kindly be answered in favour of the appellant. 13. Mr. To buttress this argument, he relied upon the judgment passed in Kale and Others vs. Deputy Director of Consolidation and Others, AIR 1976 SC 807 . On these grounds, he submits that the law points framed by this Court may kindly be answered in favour of the appellant. 13. Mr. Shankar, learned counsel for the appellants in Second Appeal No. 04 of 2005 addressed the Court on the law points framed by this Court simultaneously and submits that the judgment of the learned appellate court is not in accordance with law as the learned appellate court has failed to discuss the evidences both oral and documentary of the parties by reversing the judgment passed by the learned trial court. He submits that the learned trial court came to conclusion that defendant 3rd party-appellant has possessed the land since life time of Laru Lal Tiwary and more particularly after the family arrangement made by Laru Lal Tiwary vide family settlement through Ext.B made in the year 1945 admitted by the plaintiffs and defendant 1st party. Rest of the arguments advanced by Mr. Sahay has been adopted by the learned counsel for the appellants in Second Appeal No. 04 of 2005. 14. Mr. Roy, learned counsel for respondent no. 1 submits that the suit was decreed in part in favour of the plaintiff and the said decree was challenged in appeal before the learned Sessions Judge and the same was reversed by a a cogent reasoning and he is not aggrieved with that finding of the learned appellate court. He submits that in this background, law points framed by this Court may kindly be answered in favour of respondent no. 1. 15. Mr. Choudhary, learned counsel for respondent no. 2 submits that the learned appellate court has interpreted Ext.B, which is family arrangement in its right perspective and he has elaborately discussed the materials in paragraphs 17 and 18 of the judgment and has come to the conclusion that Ext.B is a forged document and that is why, he has been pleased to reverse the finding of the learned trial court. He submits that in view of correct appreciation of Ext.B, the law points framed by this Court may kindly be answered in favour of respondent no. 2. 16. He submits that in view of correct appreciation of Ext.B, the law points framed by this Court may kindly be answered in favour of respondent no. 2. 16. In view of the above submissions of the learned counsel for the parties, law points are interlinked and that is why all are considered by this Court simultaneously. It is an admitted fact that the suit was instituted by respondent no. 1 being Title Suit No. 36/1980. The said suit was decreed as has been discussed herein above. Aggrieved with that, Title Appeal No. 7 of 1992/12 of 2004 was filed, whereby, the learned 3rd Additional District and Sessions Judge, F.T.C. Jamtara has reversed the finding of the learned trial court. 17. The learned trial court while considering family arrangement deed at Ext.B came to the finding that five plots of Dhanjori and Lakhanpur have been allotted in the name of Sumitra Devi out of them four plots are situated in village Dhanjori and those plot nos. are 409, 221, 224 and 110 and only one plot no. 363 is situated in village Lakhanpur, but he found that plot nos. 224 and 110 do not mentioned in the schedule of the plaint. Moreover among the schedule given in schedule of Ext.B, the learned trial court found that by virtue of document, the land has been claimed in fraction in according to schedule of the plot no. 238 and Bari has been recorded as 38 decimals in total and discussing further, the learned trial court has held that plots in fraction have been claimed by defendant no. 3 but no boundaries or specification has been given in the schedule of Ext.B. He further found that there is no evidence whether oral or documentary that defendant no. 3 has been in possession of such plots in fraction with some specific boundaries and in absence of such evidence, it can be concluded that no specific plots were allotted to any of the parties and the family arrangements paper was prepared simply for future reference and it was simply a notional partition. Further with regard to second point of partition, the learned trial court has held that evidences available on record suggest that Kapur Bala and Dharnidhar Ojha are in possession of the land in according to their convenience for which no separate claim be made by any of the parties. Further with regard to second point of partition, the learned trial court has held that evidences available on record suggest that Kapur Bala and Dharnidhar Ojha are in possession of the land in according to their convenience for which no separate claim be made by any of the parties. However, if the contents of Ext.B is accepted in toto, in that circumstances the claim and right of plaintiff is infringed inasmuch as Sumitra Devi did not retain according to the fair and acquirable distribution of lands, therefore, specific plots claimed by defendant no. 3 cannot be accepted and in that circumstances, the learned court held that entire suit land excluding the houses are liable to be partitioned in which the plaintiff would get 1/4th share and in this background, the learned trial court has distributed the share as has been indicated herein above. 18. The learned appellate court has formulated law points to decide the appeal in paragraph 13 of the judgment. While considering Ext.B, the learned appellate court has elaborately considered the statement of Sindhubala in paragraph 17 of the judgment and, thereafter, has been pleased to appreciate the recitals and found that Dharnidhar Ojha has been allotted some lands by Laru Lal Tiwari after the death of Sindhubala, who died in the year 1944 and the contention made in the written statement of respondent that Larulal Tiwari has made an arrangement in the year 1935, falsified from Ext.B. The findings of the learned appellate court and the learned trial court on the point of Ext.B are the same. Thus, on the point of Ext.B, there is concurrent finding of both the courts. The learned appellate court has also found that Ext.B is not signed by all the parties and the document of family arrangement is not a registered document and in absence of signature of all the parties, the learned appellate court has come to the conclusion that Ext.B is not a genuine document. 19. Further adverse possession cannot be claimed by way of two contentions. The appellants are claiming land on the ground of Ext.B and adverse possession also, which is contradictory with each other, as has been held by the Hon'ble Supreme Court in Roop Singh (Dead) through LRs. vs. Ram Singh (Dead) through LRs. (2000) 3 SCC 708 . 20. In the judgment relied by Mr. The appellants are claiming land on the ground of Ext.B and adverse possession also, which is contradictory with each other, as has been held by the Hon'ble Supreme Court in Roop Singh (Dead) through LRs. vs. Ram Singh (Dead) through LRs. (2000) 3 SCC 708 . 20. In the judgment relied by Mr. Sahay, learned counsel for the appellant on the point of estoppel, the dispute was not with regard to the document which was family arrangement and it has been considered by the Hon'ble Supreme Court. In the case in hand, the dispute is there with regard to Ext.B and both the courts have given concurrent finding on that document. Thus, the point raised by Mr. Sahay with regard to estoppel is not helping the appellant. 21. In view of the above, the law points formulated by this Court are answered accordingly. 22. Accordingly, these appeals are dismissed. 23. Pending I.A. if any, is disposed of. 24. Let the L.C.R. be sent back to the concerned court forthwith.