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11. In the latter case, the appeal arose out of a suit for partition (as in the present appeal before us). The suit was in respect of two khewats, khewat No. 3 in patti Khalispur original and khewat No. 7/1 in patti Harlochanpur dependency. The plaintiffs alleged that the parties were in joint possession and occupation of the two khewats. The suit was defended on the ground amongst others, of a previous partition of the lands of khewat No. 3 and there was no objection to the partition of lands of khewat No. 7/1. The suit was decreed by the 'trial Court in respect of both the khewats, and a preliminary decree for partition' was passed. The defendants appealed to the High Court.

12. The High Court accepted the findings of fact of the court below and held against the allegations of the defendants of a previous partition etc. This Court also observed that though in law, possession of one co-sharer was possession of the other co-sharers, yet, factually all co-sharers were not in khas possession of all the Zirat and bakasht lands.

13. The argument for the defendants on appeal was that the estates (comprised in khewat No. 3) having already vested in the State of Bihar under the Bihar Land Reforms Act (after the decree of the trial Court), the trial Court's decree for partition of these estates cannot stand and this Court should take notice of this new legislation and its effect on the decree.

"It may be a lacuna in the Act itself. If so, it is for the Legislature to fill it up. It may be that the Legislature intended to lease back the lands and the mines only to such intermediaries who are active and capable enough to cultivate the lands and to work the mines on the date of the vesting of the estate. If so, the language is plain enough to indicate that intention."

The result was that the suit, so far as it related to the partition of khewat No. 3, was dismissed as not maintainable. So far as khewat No. 7/1 was concerned, it was held that, as it was nobody's case that any particular co-sharer was in khas possession of any particular portion of the proprietors' lands of that khewat, it could be presumed that the entire body of co-sharers was in khas possession of the entire land and the suit was maintainable.