HULAS NARAYAN MAHTO Vs. KHUB LAL MAHTO

JUDGEMENT

(1.) This is an appeal by defendants 3, 4, 7 and 8 against a preliminary decree passed by the Subordinate Judge of Patna in a suit instituted by the plaintiff for partition of five annas and odd takhta of khewat No. 1/3 in village Malatbigha in which the plaintiff has a half share. The takhta comprises an area of 3073 acres. This includes an area of 1178 acres which has been recorded in the survey operations as bakasht land under khata No. 22. Out of the lands recorded as bakasht in khata No. 22 defendants 3, 4, 7 and 8 allege that 932 acres, which were detailed in their written statement, was their raiyati and they claimed possession of it.

(2.) The learned Subordinate Judge passed a preliminary decree for partition and directed that of the lands in khata No. 22, 12 plots were to be treated as held by defendants 3 to 8 under Section 22, Clause (2), Ben. Ten. Act, and the remainder to be treated as bakasht of the maliks. Defendants 3, 4, 7 and 8 have appealed against the latter part of the decree and the plaintiff has preferred a cross- objection. With respect to 54 acres which the defendants claimed as their ancestral kasht, it was alleged by them that it was land in respect of which Churaman Mahto had been entered as raiyat in the thakbast khasra of 1839. The learned Subordinate Judge however has pointed out that there is no evidence whatsoever to identify the lands entered in the thakbast khasra in the name of Churaman Mahto with any of the lands recorded under khata No. 22. Nor has the learned advocate who has appeared for the defendants been able to point out any evidence of identification of those lands.

(3.) Cross-objection.---The plaintiff claimed that he was entitled to partition of the entire 1178 acres of khata No. 22 and adduced oral evidence to prove that this land had been in the joint cultivation of the maliks. That evidence has been disbelieved by the learned Subordinate Judge and no reference has been made to it in this appeal. The learned Subordinate Judge however pointed out that the plaintiff was entitled to partition unless the defendants were able to establish that they had acquired some right in the lands which attracted the operation of Section 22(2), and after a review of the evidence held that with regard to the 12 plots already referred to the defendants had established such a right. Section 22(2) applies only to transferable holdings and the only evidence that the land in dispute in this suit is transferable is the evidence of D.W. 2, who was himself one of the defendants. This witness stated in cross-examination that there was a custom of transferability in the village. No documentary evidence was produced on this point and there is no evidence to corroborate the evidence of this witness.