MUNA MAHTO Vs. RAGHUNATH MAHTO

JUDGEMENT

(1.) This is the plaintiffs appeal in an action for partition. The parties to the suit had a common ancestor in one Karam Mahto. The plaintiffs in the action are descended from Gurcharan Mahto who was Karam Mahto's second son, and the defendants from Bodhram Mahto, Shiva Mahto and Kashi. Defendants 8, 9, 10, 15, 16, 17, 18 and 19 did not contest the suit but supported the plaintiffs claim for partition. The learned Subordinate Judge has dismissed the case on the ground that the circumstances of the case show that as the defendants contended, partition had already taken place many years before the institution of the suit. The argument before us has mainly been concerned with the question of on whom is the onus in the case in circumstances such as these. To state the case of the parties more in detail it is this.

(2.) The admitted facts are that the parties were separate in mess, that they were separately in possession of separate parts of what was at one time at least the property of the joint family. The defendants case, as I have already indicated in answer to the plaintiffs claim, was that a partition had taken place first of all as between Karam Mahto and his brother Umag Mahto and after that as between the 2nd, 3 and 5 sons of Karam Mahto.

(3.) The learned Subordinate Judge in his decision has, as I have already stated, come to the conclusion that this separation which the defendants set up had taken place some considerable time ago and what he appears to have relied upon mainly was the fact that there was separate possession of the various parts of what at one time was the joint Hindu family property, and he has come to the conclusion on the basis of an authority to which I shall presently refer that in the circumstances it must be assumed that this state of affairs which admittedly exists had a legal origin.