P.K Deb, J.:— This appeal has been preferred by the abovenamed defendant-appellant against the judgment and decree dated 11.10.1982 passed by Shri Jhouri Prasad Paul, the then 2nd Additional Subordinate Judge, Palamu in Title Suit No. 120 of 1981, whereby the plaintiffs-respondent's suit has been decreed.

2. The facts of the case run in narrow compass.

3. The suit land consist of 19.86 acres of land appertaining to khata no. 98 of village Danda Tola Kajarma within Garhwa P.S District-Palamu. Thakur Mallah was the original occupancy raiyat and in the survey settlement in the year 1916-1917 for the Palamau area, record of rights were created in the name of Thakur Mallah. Thakur Mallah, the original raiyat had two sons namely Somaru Mallah and Sita Mallah. Both the sons predeceased Thakur Mallah. Somaru Mallah has one son Deoki Mallah who happens to be the sole defendant-appellant in the case while Sita Mallah the youngest son of Thakur Mallah had three sons, who are the plaintiffs-respondents. According to the plaintiffs, during the life time of Thakur Mallah and before survey settlement, Somaru Mallah was separated and he was given his share of properties and Thakur Mallah and Sita Mallah remained joint both in mess and cultivation. Besides the suit-Khata, there were other lands in khata no. 99 and 101 and according to the plaintiffs, land in those khatas on separation had been given to Somaru Mallah. Somaru Mallah also died during the life time of Thakur Mallah and Thakur Mallah and his youngest son Sita Mallah while remaining joint both in mess and property, Sita Mallah predeceased Thakur Mallah leaving behind plaintiffs as his heirs. According to the plaintiffs, three plots in suit khatas were in exclusive possession of Somaru Mallah and then to defendant-appellant, Deoki Mallah and all other lands in the said khata remained in exclusive possession of the plaintiffs as on the death of Thakur Mallah only Sita Mallah heirs i.e grand sons of Thakur Mallah had inherited by succession and not by survivorship as the other co-sharer i.e defendant since the days of his father were separated and divided regarding the share. It was also asserted that there was partition during life time of Thakur Mallah and Somaru Mallah has got his share totally separated. Cause of action arose when plaintiff no. 1 filed an objection before the Revenue authorities for reduction of rent in respect of their shares which was objected to from the side of Deoki Mallah. According to Deoki Mallah he was paying half of the share of rent since before.

4. Because of this dispute, the present suit has been filed for declaration of right, title and interest of the plaintiffs over the suit land, which is a part of khata no. 98.

5. In the written statement, the defendant alleged inter alia that the plaintiffs' suit was not maintainable, that there was no cause of action in filing the suit and that when whole of the lands in the suit khata had not been included the present suit was not entertainable. On facts it was asserted by the defendant that there was no separation between the Somaru Mallah and his father and Sita Mallah on the other hand, rather the properties remained joint of Thakur Mallah and his two sons. Thakur Mallah held and possessed the land of khata no. 98 during the time of survey settlement and seven plots of this khata being found in possession of Somaru Mallah and as such kabjabari was noted in the Revenue records, although the khata remained in the name of Thakur Mallah alone. As per the defendant, the property was a joint family property and Somaru Mallah had his separate earning by separate business and through that income he had acquired some lands of khata no. 101 alongwith Tulsi Sao and some portion of khata no. 99 for which he was recorded in survey record of rights. As regards the suit khata no. 98 it was asserted by the defendant appellant that there was family arrangement for convenience between the defendant on one hand and the plaintiffs on the other hand on mess and possession and were always half and half possession of the suit property between the plaintiffs on one hand and the defendant on the other hand. Thus, the defendants case was that he was in cultivable possession of half of the area of khata no. 98, and that in the Serista of State of Bihar 11.62 1/2 acres of land were in the name of the defendant and he was paying the rent accordingly.

6. Although, issues were framed earlier, but after the closure of evidence and consideration of the admitted position of some facts, the issues were re-cast in the following manner:

1. Is the suit so framed maintainable?

2. Have the plaintiffs cause of action and as such right to sue?

3. Is the suit under valued?

4. Whether the plaintiffs are occupancy raiyats in respect to the suit land?

5. Whether the defendant is in possession of half area of the suit land?

6. To what relief or reliefs if any the plaintiffs are entitled?

7. For and on behalf of the plaintiffs in total 14 witnesses have been examined out of whom vital witnesses are PW-1, PW-2, PW-4, PW-6, PW-9 and PW-11 while the other witnesses are only formal witnesses, regarding proof of some document including the revenue records, rent receipts etc. On behalf of the defendant 14 witnesses have been examined including the defendant himself. Their evidence was mainly in respect of possession of half share in the suit property by the defendant and also regarding denial of plaintiffs' case towards separation/division/partition as asserted from the side of the plaintiffs. The vital issues in the suit are issue nos. 4 and 5 and the learned court below has decided those issues against the defendant and held that there was separation and division of properties before the survey settlement between Thakur Mallah and his eldest son Somaru Mallah and as such on death of Thakur Mallah, the sons of Sita Mallah only inherited the properties which were held by Thakur Mallah during his life time. Other issues being related were also decided in favour of the plaintiffs and as such the suit has been decreed.

8. The crux of dispute is as to whether there was any partition or division or separation of properly of Somaru Mallah, during the life time of Thakur Mallah or not. If such separation and division could be proved then the plaintiffs have got a case otherwise not.

9. Mr. N.K Prasad, Sr. counsel, appearing on behalf of the defendant appellant by referring to the decision of issue nos. 4 and 5 has alleged that the learned court below himself was confused and he gave contrary observations while deciding those vital issues. He has held once that there was no evidence of separation or partition by metes and bounds between Thakur Mallah and Somaru Mallah. On the other hand, by referring to the entries in the Revenue records, he has held only by presumption, conjectures and inferences that the plaintiffs could prove that Somaru Mallah was divided from the ancestral property during the life time of Thakur Mallah. His further contention is that both Somaru Mallah and Sita Mallah predeceased Thakur Mallah and as such the plaintiffs and defendant stand on the same footing as that of grand sons of original raiyat Thakur Mallah and as such would definitely inherit the property by way of succession half and half and the learned court below did not at all consider that aspect of the matter.

10. On the other hand, Mr. Debi Prasad appearing on behalf of the plaintiff-respondents has controverted the submissions of the learned counsel for the appellant to the effect that once a son has separated during the life time of a person having self acquired property then the son who has been divided from the property would be excluded from succession and son or the grand son who remained joint with the original land holder would only succeed to the property. He has referred to the analogies of Hindu Law in this respect and a Division Bench of this Court as reported in AIR 1955 Patna, 408 (Satrughan Prasad Singh v. Sandip Narain) wherein it was held under Mitakshara School of Hindu Law, the self acquired property of father shall be devolved only on the undivided sons preferentially and not on the divided sons. According to Mr. Devi Prasad, although the separation as alleged from the side of the plaintiffs was done before 1916-1917 and it was not possible to get any oral evidence to that effect but the revenue records would definitely come into play in proving such separation of division of properties.

11. In view of the contrary submission being made by two Senior Counsel appearing for the parties, the materials on record are to be looked into in the light of the impugned judgment. Either in the Mitakshara Hindu School of law or Dayabhag School of Hindu Law, the presumption is that unless a division is there either amongst the coparceners or the co-sharers, as the case may be, the property of the Hindu family remains joint.

12. In the present case, the plaintiffs have asserted that there was separation of Somaru Mallah, the predecessor of the defendant-appellant from the joint family during the life time of the recorded tenant Thakur Mallah who had got the self acquired property by analogy alone as Thakur Mallah was the recorded tenant as per the survey settlement made in the year 1916-1917 in respect of khata no. 98. So, the burden lies on the plaintiffs to prove their assertion.

13. The learned court below, in the impugned judgment has observed that the plaintiffs could not be able to discharge their duties regarding proof of division of property, but on the same breath he has taken the documentary evidence i.e the revenue records only for the purpose of proof of such partition on behalf of the plaintiffs. PW-1 happens to be the Damad of Thakur Mallah i.e Bahnoi (brother in law) of Sita Mallah, predecessor-in-inter-est of the plaintiffs. During the stage of his deposition, he was 80 years old and he had asserted that during the life time of Thakur Mallah, Somaru Mallah, the predecessor of the defendant had separated both in mess and property, although, he stated that he was not present at the time of such division of property or partition whatever might be. In the course of examination, he has completely demolished what he wanted to say in his examination-in-chief. In that view of the matter, the learned court below has rightly observed that the evidence of PW-1 could not suppoprt the case of partition or division as asserted by the plaintiffs. Other witnesses examined in this respect are PW-2, PW-6 and PW-9, PW-2 is a relative of Sukhdeo Mallah and from his age, it could be found that he could not be witness for such partition. PW-4 has admitted his animosity with the defendant and he is also not a person who can prove such partition. PW-6 is the Samdhi of plaintiff, Jatu Mallah. PW-9 is the son of plaintiff Jatu and PW-11 is the plaintiff no. 1 himself. These witnesses, although interested, but on close scrutiny also it could be found that they were not in a position to say about the division of property except the fact that Somaru Mallah was residing separately and that he was also separated in mess.

14. Separate in mess and separate cultivation amongst the co-shares do not mean that there was partition by meets and bounds or separation of one of the coparceners from the ancestral property. Here the properties are not ancestral but self acquired property of Thakur Mallah. Thus, the learnned court below has rightly held that by any cogent evidence, the plaintiffs could not prove their case of separation of Somaru Mallah or division of property during the life time of Thakur Mullah by his eldest son Somaru Mullah and for that reason the learned court below had resorted to the Revenue records for getting analogy in support of the plaintiffs' case. Noting of Kabjabari in the revenue records do not prove separation or partition, which only gives an analogy that there was separate cultivation or possession by the person in favour of whom kabjawari has been recorded. In khata no. 98 eight plots were shown to be in the kabjawari of Somaru Mallah including a residential plot of 870.

15. I have already mentioned that legal position is clear. Entries in the revenue records cannot prove partition or separation. It can only come as an aid if there is other cogent evidence regarding separation or division of property. It has already been held by the learned court below that there was no cogent evidence from the side of the plaintiffs regarding separation or division of property. From the independent scrutiny of evidence of the plaintiffs' side also, as discussed above, I could find that the plaintiffs have miserably failed to prove separation of property or division of property by Somaru Mallah during the life time of Thakur Mallah. The Revenue records which has been relied on by the learned court below is against the legal provisions as mentioned above. On one hand, the learned court below relied on the entries of kabjawari in the revenue records while on the other hand, he has disbelieved the rent receipts, Ext. A series, filed by the defendant regarding payment of rent towards the half of the suit khata 98. If revenue records have been relied on then the rent receipts should also be taken into consideration in the same light. Thus, the kabjawari notings in the Revenue records do not support the possession of seven plots only when the rent had been paid by the defendant for the half of the suit khata land. The defendant has asserted in his pleadings that the other properties in khata nos. 99 and khata no. 101 were the self acquired property of Somaru Mallah by his separate earnings. Khata no. 99 and khata no. 101 are not the subject matter of this suit. Only analogies are tried to be drawn by the plaintiffs by referring to those khatas. Khata no. 101 had not been brought on record itself. The learned court below found fault with the defendant-appeallant that it was his boun-den duty to prove as self acquired property. It is true that burden lies on the defendant but when plaintiffs assert that those were also the lands of Thakur Mallah and on separation those have been received by Somaru Mallah then the prima facie burden lies on the plaintiffs to prove it and when the plaintiffs can prove such facts then only the burden shifts to the defendant to show as self acquired. The learned court below had given go bye to the norms of the Evidence Act in this regard. The legal proposition by referring to the ruling of the Division Bench of the Patna High Court cannot be denied, although facts in the present case and in the reported case are totally different. But, even then the legal analogy can be brought. The inheritance or succession would depend on the undivided sons or his heirs only when it could be proved that there was division of property and separation by another son. So, for bringing the analogy of law as reported in the case, pre-condition remains that there was separation of the divided sons. Here that pre-condition could not be proved by the plaintiffs either by documentary evidence or by oral evidence. The learned court below seems to have confused himself in deciding issue nos. 4 and 5 and as such he himself has given contradictory observation as already observed. When division of Somaru Mallah during the life time of Thakur Mallah in respect of the suit khata could not be proved then the basis of the plaintiffs case had failed. Legal analogy would come only after the factual aspect of division of property is proved to the hilt. The separation in mess or specific noting regarding the residential plot in the revenue records do not conclusively prove the factum of separation of the father. Here, the sons have already predeceased the original owner and as such on the death of grand father the grand sons through two predeceased sons stand on the same footing and as such they would inherit half and half definitely. Moreover, in the present case, there is technical defect also. When such claims have been raised from the side of the plaintiffs, they ought to have made the whole of the suit khata or the other khatas within the fold of the suit, but that has not been done.

16. Be it what it may, on the discussions made above, I find and hold that the learned court below has misconstrued in deciding the factual aspect of the case and also in drawing the legal analogy. Plaintiffs have miserably failed regarding separation of Somaru Mallah, predecessor of the defendant during the life time of Thakur Mallah and as such when the very basis of the plaintiffs case could not be proved, the whole suit must fail.

17. In the result, the appeal is hereby allowed and the suit brought by the plaintiffs is hereby dismissed. The defendant appellant should get costs throughout the appeal and the suit.