1. This appeal has been filed against the judgment and decree dated 24.05.2002 (decree signed on 07.06.2002) passed by the learned Additional District Judge, Singhbhum (East), Jamshedpur in Title Appeal No. 34 of 1987 dismissing the cross-appeal filed by the plaintiffs in the said appeal and confirming the judgment and decree dated 27.05.1987/12.06.1987 passed by the learned Sub-Judge-III, Jamshedpur in Title Suit No. 65/75 of 1985-86.

2. Title (Partition) Suit No. 65/75 of 1985-86 was filed by Lakshman Sharma (original plaintiff) for the following reliefs: -

                  “(i) for a preliminary decree for partition of half share of the Plaintiff in the properties described in Schedule ‘A’, ‘B’, ‘B(i)’, ‘B(ii)’ and ‘C’ below and for partition of his 1/8th share in the properties described in Schedule ‘B’ below.

                  (ii) for appointment of a survey knowing pleader commissioner to survey the aforesaid properties and partition plaintiff’s share in the aforesaid properties.

                  (iii) for a final decree for partition of plaintiff’s share in the aforesaid properties after receipt of the pleader commissioner’s report.

                  (iv) for the cost of the suit.

                  (v) for any other relief or relief to which the plaintiff may be found to be entitled in law and equity.”

3. The records of the case reveal that the original plaintiff was Lakshman Sharma and the defendant no. 1, namely, Ram Chandra Sharma was his full brother.

4. The learned counsel for the appellants has submitted that the main contesting defendant was defendant no. 1 and other defendants were also the family members and defendant nos. 12 and 13 were proforma defendants.

5. The learned counsel has then referred to the substantial question of law framed in this case vide order dated 21.04.2005 which is quoted as under: -

                  “Whether in absence of any specific pleading by the defendants that the property of Sakchi Market (Holding No. 94) and the land of Mouza Gadra were purchased out of the joint fund of the plaintiffs and the defendants and without any proof on record on such joint acquisition, the findings of the Courts below regarding the jointness of the said property are vitiated in law?”

6. Arguments of the appellants.

                  a) The learned counsel for the appellants submitted that the substantial question of law framed in this case revolves around Holding No. 94. He submits that Holding No. 94 was not included in the Schedule of the plaint, but the learned trial court had included Holding No. 94 while passing the decree regarding partition of the property and ½ share each with respect to Holding No. 94 was allotted to the original plaintiff and the defendant no. 1.

                  b) On account of inclusion of Holding No. 94 in the partition at the instance of defendant no. 1, the plaintiffs had filed cross- objection/cross-appeal before the learned 1st appellate court. The defendants had also filed appeal before the learned 1st appellate court who were aggrieved by the order of partition. He submits that the appeal of the defendant no. 1 as well as the cross-objection were dismissed by the learned 1st appellate court.

                  c) The cross appeal of the plaintiffs was dismissed and consequently, the plaintiffs have filed Second Appeal and the defendant no. 1/their legal heirs had also filed Cross Objection No. 03 of 2005 which stood dismissed for default vide order dated 08.09.2022.

                  d) Holding No. 94 was standing in the name of the original plaintiff, namely, Lakshman Sharma and since it was his self-acquired property it was not included in the schedule of the plaint. He submits that the defendant no. 1 in the written statement had asserted in paragraph 21 and 22 that Lakshman Sharma had not whispered a word with respect to Holding No. 94 which was once acquired by defendant in the name of K. Mahapatro (nephew of the defendant no. 1 and son of his elder brother, namely, Markandya Patro) and subsequently it was acquired in the name of the original plaintiff by virtue of registered sale deed dated 12.08.1968.

                  e) In paragraph 22 of the written statement, the defendant no. 1 has asserted that the defendant no. 1 first acquired the Shop No. 94 of Sakchi Bazar in the name of his nephew K. Mahapatro and one Kumar Bar Parida for 5 years by means of registered deed dated 17.11.1962. As the owner of the said property was highly indebted and expressed his desire to sell the same and it is defendant no. 1 who got the said property purchased in the benami name of the original plaintiff after collecting some money by selling another shop at Balidih, Jamshedpur being shop no. 5.

                  f) The learned counsel has then referred to paragraph 26 of the written statement filed by the defendant no. 1 and submitted that it was alleged that the original plaintiff has suppressed many facts and had not included some considerable amount of property like Holding No. 94 which was acquired in the joint names of the parties and it was asserted that unless the same is included, the suit cannot proceed.

                  g) The learned counsel submits that the plaintiffs did not include Holding No. 94 as a suit property and it was defendant no. 1 who asserted that Holding No. 94 was joint property, so it was the onus of defendant no. 1 to prove that the said property was the joint property of the original plaintiff and the defendant no. 1.

                  h) The learned counsel has submitted that the property in Holding No. 94 was standing in the exclusive name of the original plaintiff and it was the defendant no. 1 who asserted that it was the joint property, therefore, it was for the defendant no. 1 to prove this fact by bringing on record cogent evidence. He submits that in absence of such cogent evidence, the learned courts should not have included Holding No. 94 for the purposes of partition.

                  i) The learned counsel submits that so far as the direction for partition in connection with other properties are concerned, the plaintiffs have no grievance as the suit stand decreed in favor of the plaintiffs which was confirmed by the learned 1st appellate court and the cross-objection filed by the defendants being Cross Objection No. 03 of 2005 has been dismissed.

                  j) The learned counsel has referred to exhibit-6/a which was the lease deed dated 18.12.1962 between Jagannath Sahu on one part and Lakshman Sharma and Surendra Nath Parida on other part. Thereafter, he referred to exhibit-A/6 which is dated 12.08.1968 to submit that Holding No. 94 was purchased exclusively in the name of Lakshman Sharma (the original plaintiff) and not jointly in the name of Lakshman Sharma and defendant no. 1.

                  k) The learned counsel has also referred to Sections 101 and 106 of the Indian Evidence Act to submit that the onus was on the defendant no. 1 to prove that the property was acquired jointly with respect to Holding No. 94. It was also for the defendant no. 1 to plead and prove that the property was purchased from the joint family fund.

                  l) The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2003) 10 SCC 310 (D.S. Lakshmaiah & Anr. vs. L. Balasubramanyam & Anr.) and has referred to paragraph 18 thereof which reads as under: -

                  “18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.”

                  m) The learned counsel submits that if the aforesaid principle of law as lays down by the Hon’ble Supreme Court is followed, then the defendant no. 1 has miserably failed to prove that Holding No. 94 was a joint family property and therefore the learned court has wrongly included Holding No. 94 by partitioning the property, although admittedly Holding No. 94 did not form a part of the schedule of the plaint seeking for partition.

Findings of this Court

7. It is not in dispute that the original plaintiff and defendant no. 1 were full brothers and they were originally residents of Orissa.

8. It was the specific case of the plaintiffs that the original plaintiff and defendant no. 1 came from Orissa to Jamshedpur and they jointly started grocery business in the ground floor of the building in Holding No. 0.53, Handi Line, Sakchi Bazar and the entire building was taken on rent from one Madhab Sahu, the owner of the property. The original plaintiff and defendant no. 1 jointly carried on their business each having ½ share in the business and from the earning of the joint business they purchased properties.

                  With respect to Schedule A property, it was stated that plaintiff and defendant no.1 purchased two storied building from the owner Madhab Sahu and his son Bishwanath Sahu vide registered sale deed dated 27.07.1965 for a consideration amount of Rs. 6,000/- and the sale deed was executed by Madhab Sahu and his son in favor of the original plaintiff and the defendant no. 1. It was the further case of the plaintiff that the building was purchased by them out of their joint family fund, that is, income from the joint family grocery business.

9. With respect to Schedule B property, it was the case of the plaintiff that out of the joint family fund, the original plaintiff and the defendant no. 1 purchased the same jointly with Raghunath Sahu (defendant no. 2) and they jointly undertook construction over the property with Raghunath Sahu and they were in joint possession with Raghunath Sahu. The property was purchased out of the income from the aforesaid business. It was the case of the plaintiff that Raghunath Sahu has ¾ share in Schedule- B property and the original plaintiff and the defendant no. 1 jointly have ¼ share and thus, the plaintiff has 1/8th share and the defendant has 1/8th share and Raghunath Sahu has ¾ share.

                  With respect to Schedule C property, it was the case of the plaintiff that the original plaintiff and the defendant no. 1 had purchased the same out of the joint business and joint fund and in the recent survey, a portion of the property along with a small house thereon has been allotted to the share of the plaintiff and the defendant no. 1 and the plaintiff claimed ½ share of the property. The plaintiff asserted that for proper adjudication of the suit Satrughan Sao and Ram Lal Majhi were made proforma defendants in the suit.

                  It was also asserted that the defendant no. 1 had confiscated certain immovable property in terms of gold etc.

10. It was the further case of the plaintiff that the original plaintiff and defendant no. 1 were separated in mess and the joint grocery business was closed in or about the year 1978 though a fair price shop was still running in Schedule-A property. It was the further case of the plaintiffs that the defendant no. 1 had sold some of the joint properties and the original plaintiff requested for amicable partition, but the defendant no. 1 refused to do so which gave rise for filing the partition suit.

                  Schedule-B(i) and also in Schedule-B(ii)

                  It was the further case of the plaintiff that the defendant no. 1 and the original plaintiff purchased further property which is mentioned in Schedule-B(i) and also in Schedule-B(ii). It was asserted that the defendant no. 1 had sold land to defendant nos. 5 to 12 by eight separate sale deeds.

11. The plaintiff claimed 1/2 share of the properties described in Schedule ‘A’, ‘B’, ‘B(i)’, ‘B(ii)’ and ‘C’ and for partition of his 1/8th share in the properties described in Schedule ‘B’.

12. The records reveal that separate written statement was filed by defendant no. 1 and defendant no. 12. The defendant no. 1 opposed the prayer by asserting that the suit itself was not maintainable and there was no unity of title and possession in all the suit properties between the parties.

13. It was asserted that it was false to allege that the defendant no. 1 and Lakshman Sharma has come to Jamshedpur and that they jointly started a grocery business in Holding No. 53 as alleged by the original plaintiff.

                  It was the case of the defendant no. 1 that he came to Jamshedpur alone in the year 1938 after death of his father in search of livelihood and took the entire Holding No. 53 described in Schedule-A of the plaint as tenant on monthly rent and started a business of grocery shop from his own and separate fund and was residing with his family in a portion of the same.

                  The house was originally a single storied building which was subsequently constructed in two storied building in two units.

                  It was the further case of the defendant no. 1 that in the year 1946/47, since the business was flourishing, the defendant no. 1 asked his brother Lakshman Sharma (original plaintiff), who was student at that point of time, to come to Jamshedpur and helping him in his outdoor business. The defendant no. 1 also maintained the family of Lakshman Sharma. During this period, the defendant no. 1 acquired landed property in plot no. 352 and 351 in the joint name of the original plaintiff and the defendant no. 1 by registered deed dated 23.07.1951 and further acquired property in old plot no. 352 in the joint name of the defendant no. 1 and the original plaintiff Lakshman Sharma.

14. It was the case of the defendant no. 1 that he was occupying portion of Schedule-A property as tenant which was purchased by defendant no. 1 out of his self-acquired fund though in the joint name of defendant no. 1 and the original plaintiff from the original owner vide registered sale deed dated 27.07.1965. It was the case of the defendant no. 1 that the defendant no. 1 having purchased the Schedule-A property out of his self-acquired fund unconcerned with Lakshman Sharma, the name of defendant no. 1 was duly mutated in the office of M/s. TISCO Ltd. exclusively in the name of defendant no. 1 and the defendant no. 1 continued to pay rent to M/s. TISCO Ltd. It was the further case of the defendant no. 1 that the original plaintiff was never the owner of the suit property mentioned in Schedule-A of the plaint and the original plaintiff was only the name lender without having any right over Schedule-A property. With respect to other suit properties also similar stand was taken.

15. The defendant no. 1 opposed the prayer of the plaintiff seeking partition of the schedule properties to the plaint by saying that the suit properties were self-acquired properties of the defendant no. 1/defendant no. 1 and other co-defendants and the original plaintiff had nothing to do with those properties.

16. In furtherance to the aforesaid stand dealing with the suit properties, reference was made to some more property including Holding No. 94 of Sakchi Market and land situated in Mouza Gadhra, which is subject- matter of consideration in the light of the substantial question of law framed by this Court and the defendant no. 1 made following statements in paragraph 21 to 23 and 26 : -

                  “21. That it is very much curious to note that the deceased plaintiff Lakshman Sharma has not made any whisper about holding No. 94, Sakchi Market, Jamshedpur which was once acquired by this defendant in the name of K. Mahapatro nephew of this defendant (son of his elder brother Markandya Patro) and subsequently in the name of deceased plaintiff, and also about lands of Plot Nos. 351 and 352 of Mouza Gadhra, P.S. Telco., measuring 0.07 acres of homestead lands, which was acquired by means of Registered deed of Sale, dated 22/7/1951 in the joint names of this defendant and deceased Lakshman Sharma and also about another portion of Plot No. 352 which was separately acquired by this defendant by means of Registered Deed of Sale, dated 7/3/1967 for valuable consideration. Besides above some more land in Mouza Gadhra were also acquired in the joint names of this defendant and Lakshman Sharma, which all measured 0.40 acres. This defendant also acquired 3.75 of agricultural land in his native place at Orissa, in village Bishra and Dadaposh.

                  22. That the defendant no. 1 at first acquired the Shop No. 94 of Sakchi Bazar in the name of his nephew K. Mahapatro and one Kumar Bar Parida for 5 years by means of Regd. Deed, dated 17/11/1962. Thereafter as the owner of the said property was highly indebted and expressed his desire to sell the same, it is this defendant who got the said property purchased in the benami name of deceased Lakshman Sharma after collecting some money by selling another Shop at Baridih, Jamshedpur being Shop No. 5.

                  23. That this defendant also jointly acquired another vacant land in Mouza Mohardih (Baridih) with Chaitan Sao, Bhagirathi Chowdhury, Ganga Prasad Sukla, measuring about 0.60 acres. The said land was acquired by this defendant and the said Vendees in their joint names along with the name of his aforesaid brother Lakshman Sharma, and also in the name of his the then minor son Srinibas Sharma.

                  24……………………………..

                  26. That from the above facts it will be crystal clear that the plaintiffs and deceased Lakshman Sharma have deliberately suppressed many facts and have not included some considerable amount of property viz. of Gadhra, holding No. 94, Sakchi Bazar etc. which were acquired in the joint names of the parties and unless the same are included, the present Suit cannot proceed.”

17. It was further case of the defendant no.1 that there was a previous family arrangement in the year 1971 and in the said family arrangement , the aforesaid Shop with the business in holding No. 94, Sakchi Bazar, as well as all the aforesaid entire properties of Mouza Gadhra, measuring more or less 0.40 acres, and also the aforesaid agricultural land of Bishra and Dadaposh Village in Sundergarh District, Orissa, measuring 3.75 acres were all allotted to said Lakshman Sharma (plaintiff) absolutely. It was their further case that after the said family arrangement, dated 16/3/1971, the parties started enjoying their respective properties allotted in the individual names in absolute and exclusive right and the plaintiff sold away himself the aforesaid entire landed properties of Gadhra Mouza vide Registered Deed of Sale dated 5/2/1974 and enjoyed the Sale proceeds. It was asserted that this fact alone would show that properties were allotted to the parties in the said family arrangement dated 16/3/1971.

                  The statement with regards to the said family arrangement have been mentioned in the paragraph 24 and 25 of the written statement as follows:

                  -

                  “24. That sometime in or about the year 1969 a Chronic dispute and differences arose between the families of this defendant and his said brother Lakshman Sharma in which it was no longer possible for them to run all the aforesaid business by the defendant no. 1 with the help of said Lakshman Sharma and for which a family arrangement was made on 16/3/1971 for smooth distribution of properties at Jamshedpur between this defendant and his brother Lakshman Sharma in presence of some renowned persons, relations, and well-wishers of parties to the locality and also in presence of K. Mahapatro. In the said arrangement the entire building of Schedule ‘A’ was allotted in the share of this defendant along with aforesaid properties of Baridih, which remained, after sale of Shop No. 5, of the said area, absolutely. The aforesaid Shop with the business in holding No. 0/94, Sakchi Bazar, as well as all the aforesaid entire properties of Mouza Gadhra, Measuring more or less 0.40 acres, and also the aforesaid agricultural land of Bishra and Dadaposh Village in Sundergarh District, Orissa, measuring 3.75 acres were all allotted to said Lakshman Sharma absolutely. Similarly K. Mahapatro was allotted the Rourkela Shop. None of this defendant or the said Lakshman Sharma or K. Mahapatro had any right, title, interest or lawful possession over any portion of the said properties which were allotted in the share of other in the aforesaid arrangement, dated 16/3/1971. This defendant thereafter continued to become absolute owner of the Schedule ‘A’ property and the business being run by him in the ground floor of the same. At present this defendant is running a Cloth Shop as well as Government Fair Price Shop in the ground floor of the said house exclusively and unconcerned with the plaintiffs or their predecessor Lakshman Sharma.

                  25. That after the said family arrangement, dated 16/3/1971, the parties started enjoying their respective properties allotted in the individual names in absolute and exclusive right. The said Lakshman Sharma thereafter sold away himself the aforesaid entire landed properties of Gadhra Mouza which was within one compact block with his elder son Brojo Sekhar Sharma by means of a Registered Deed of Sale, dated 5/2/1974 for valuable consideration to Usha Devi enjoyed the Sale proceeds themselves exclusively unconcerned with anybody.

                  This fact alone will go as sole corroboration about the properties allotted to the shares of the parties in the said family arrangement dated 16/3/1971.”

18. Both the parties adduced oral and documentary evidences before the learned trial court in support of their respective case.

19. The learned trial court in paragraph 5 at page 16 of the judgment framed as many as 10 issues and ultimately accepted the jointness of the plaintiff and the defendant no. 1 and decreed the suit and also directed for partition of Holding No. 94 of Sakchi Market and land situated in Mouza Gadhra in equal share between the plaintiff and the defendant no. 1. The court also recorded that although no document of family arrangement was exhibited, but the conduct of the parties revealed that there was family arrangement in the year 1971 still the parties remained joint and decreed the suit for partition with respect to the suit property and also with respect to holding no. 94 of Sakchi Market and land situated in Mouza Gadhra.

20. The defendants of the suit filed appeal which was numbered as Title Appeal No. 34 of 1987 and the plaintiffs filed their cross-objection which was numbered as Title Cross Appeal No. 34 of 1987. The plaintiffs in their cross-objection questioned the partition with respect to Holding No. 94 of Sakchi Market standing in the name of the original plaintiff and they assailed the judgment only to the extent in which unity of title and possession with respect to Holding No. 94 and land situated in Mouza Gadhra were accepted by the learned trial court who has directed for partition of the said property of holding No. 94 and lands of Gadhra half and half between the plaintiffs and the defendant no. 1, although the said properties were not included in the schedule of the pliant.

21. The learned 1st appellate court considered the appeal and the cross- objection together and was of the view that following two issues framed by the learned trial court which was numbered as issue no. “IMAGE” and “IMAGE” were relevant for consideration at the 1st appellate stage: -

                  “IMAGE”. As to whether the suit property was acquired by the plaintiff and the defendant no. 1 jointly having half share each or it was a self-acquired property of defendant no. 1 having no right, title and interest of the principal plaintiff Lakshman Sharma?

                  “IMAGE”. As to whether there was any family arrangement between the plaintiff Lakshman Sharma and defendant no. 1 Ram Chandra Sharma in respect of the suit property in March 1971 and the suit property fallen in the share of defendant no. 1 and he was in possession of the suit property having all right, title and interest?”

22. The learned 1st appellate court while deciding the first point i.e. issue no. छ considered the materials on record and ultimately held as under: -

                  “I have gone through the impugned order and the documents referred by the parties. From the case of the parties it is clear that it is not a case of division of coparcener property possessed by common ancestors but it is a case of reunion of parties. I am of the view that the Court below has very carefully examined all these facts and come to the conclusion relying on Ext. 3, Ext.7 and Ext.9 that there is no dispute about the reunion of plaintiff/ respondent and defendant no.1 and appellant after coming from their native place to Jamshedpur and started a grocery business in holding No.53. The income of the grocery business flourished and the other suit properties i.e. Schedule B, B/1 and B/2 and C were purchased from the collective fund of the parties. I am of the concurrent view that the finding of the Court below on this count is based on sound principle of law as well as factual and oral evidence holds that the suit properties were acquired by joint fund of both the parties having equal share irrespective of the fact which stands in whose name. The court below has further on the basis of the pleading of defendant no.1 has come to the conclusion that the holding No.94 situated in Sakchi Bazar and the land of mouza Gadhra stands in the name of the plaintiff is also the output of the joint fund raised in grocery shop. This is the reason of filing the cross-Appeal. According to the appellant of Cross-Appeal Lakshman sharma, it was his self acquired property which he purchased from his own income but the court has erroneously incorporated these lands which were not the suit property and finding place in the description of the suit property in schedule without any rhyme and reason. According to cross appellant the court has got no jurisdiction to make any order of partition over the land which was not the suit property. According to him it was the case of re-union of parties and not a division of ancestral properties. So every property cannot be put for division. Therefore impugned order is liable to be set aside to that extent.

                  On the other hand the case of the defendant from the very beginning is that cross-appellant has not come with a clean hand demanding any partition of the property which was acquired by Ram Chandra Sharma from his grocery shop. The defendant in his written statement very clearly has mentioned these facts and stated that the plaintiff has purposely concealed the fact that holding no. 94 of Sakchi Bazar and land of mouza Gadhra (orissa) which was sold to someone taking it to be exclusively property. The defendant no.1 has stated due to the family arrangement in the year 1971 that Schedule along with other properties detailed above were put in his share and holding no.94 and land of Gadhra and other land in Orissa 3.75 acres come into the share of the plaintiff. The plaintiff has not brought this fact on record and denied the family arrangement. It is not the case of the plaintiff before the Court below that he acquired the holding no.94 and the land of Mouza Gadhra from his individual income. On the other hand even after the pleading of defendant no.1 Ram Chandra Sharma before the court, no pleading could be brought on record. It is a settled view that if a fact is not denied in pleading and if there is no case of plaintiff that holding no. 94 of Sakchi Market and mouza Gadhra are his exclusive property, then in the light of the pleading it will be deemed to have been accepted by the plaintiff and in absence of any pleading, any evidence in this context is not available to the parties. The appellant has relied on an authority A.I.R. 1980 Patna page 233 to 242 in which it has been observed by our lordship that if it is not a case of the plaintiff that he acquired the land out of income that he received from his separate income, then it will be difficult to come to a conclusion that the properties were acquired from his individual income. It is the admitted case of the plaintiff/appellant of cross-appeal that the properties situated in Jamshedpur and its adjacent area was purchased with the common fund which raised from the grocery shop i.e., schedule 'A' property. He has not come with a clean hand with specific case that holding no.94 and land which has been sold of mouza Gadhra were his exclusive property. He has not even pleaded in his pleading even after filing of written statement on behalf of defendant no.1 he cannot be allowed to sail on two boats, one with a case of jointness and other with a self- acquired property without any pleading. In view of the above discussion, I am of the concurrent view with the finding of the Court below in respect of the present issue that the plaintiff and defendant made a re-union and they have got equal share in respect of the suit properties Schedule ‘A’ to Schedule ‘C’ including equal share in holding no. 94 Sakchi Bazar and land of mouza Gadhra described in Ext. A/4.”

23. While deciding issue no. “IMAGE”., the learned 1st appellate court held as under: -

                  “So far issue JA is concerned, it is the case of the defendant no.1 that on 16th March, 1971 there was a family arrangement between Ram Chandra Sharma and Lakhan Sharam in which the suit land fallen in his share and the land of mouza Gadhra and holding no. 94 of Sakchi Bazar and the land of Dadaposh and Vishra measuring 3.74 acres and the property of Rourkella fallen in the share of Lakshman Sharma. The plaintiff denied the fact and has stated that it is a gospel truth. No document in this connection has been brought on record except some evidence and the conduct of the parties. I have also gone through the oral evidence adduced in this behalf and the reason appearing in the impugned order. I am again of the concurrent view with the observation which very carefully made by the court below by observing the conduct of the parties that unless there would have been any existence of family arrangement, the plaintiff would not have sold the land to other unless it is his exclusive property. I do not want to interfere with the find finding of the Court below because the assertion made by the appellant of cross-appeal is seldom with any merit. The other issues are equally well founded and does not warrant any interference.”

24. The perusal of the finding recorded by the learned 1st appellate court reveals that the learned 1st appellate Court was of the considered view that the trial Court has rightly recorded that the suit properties were acquired by the joint fund of both the parties having equal share irrespective of the fact which stand in whose name. The finding that the suit property was acquired by joint fund of both the parties has attained finality and no substantial question of law to this effect has been framed by this Court.

25. The learned 1st appellate court further recorded that it was the case of the defendant no. 1 that due to family arrangement in the year 1971 the schedule suit property along with other properties were put in his share and holding no. 94 and land of Gadhra and other land in Orissa 3.75 acres came to the share of the plaintiff, but this fact was not brought on record by the plaintiff, who denied the family arrangement of 1971. The learned court recorded that it was not the case of the plaintiff before the trial court that the plaintiff had acquired holding no. 94 and land of mouza Gadhra from his individual income and this is in spite of the fact that the defendant no. 1 raised a specific pleading with respect to holding no. 94 of Sakchi Market and land situated in Mouza Gadhra before the trial court that these properties were allotted to the plaintiff in the family arrangement in the year 1971 but holding no. 94 was not included in the suit property. The court observed that no further pleading was brought on record. The learned 1st appellate court ultimately recorded a finding and decided the issue no. “IMAGE” by holding that the plaintiff and the defendant made a reunion and they had equal share in respect of the suit properties Schedule-A to Schedule-C including equal share in holding no. 94 of Sakchi Bazar and land of Mouza Gadhra described in Exhibit-A/4.

                  While deciding issue no. “IMAGE” , the learned 1st appellate court recorded that it was the specific case of the defendant no. 1 that there was a family arrangement on 16th March 1971 between the plaintiff and the defendant no. 1 in which suit land fell in the share of defendant no. 1 and the land of Mouza Gadhra and holding no. 94 of Sakchi Bazar and land of Dadaposh and Vishra measuring 3.75 acres and the property of Rourkella fell in the share of Lakshman Sharma. The learned 1st appellate court recorded that no document in this connection was brought on record except some evidence and the conduct of the parties. The learned 1st appellate court gave concurrent finding with respect to the observation made by the learned trial court that unless there would have been any existence of family arrangement, the plaintiff would not have sold land to others unless it was his exclusive property and ultimately the learned 1st appellate court dismissed the appeal as well as the cross-objection.

26. This Court finds that the learned trial court had clearly held that though there was family arrangement in the year 1971, but the partition was not by metes and bounds and was therefore was of the view that the partition was required to be made with respect to the entire property which was involved in the family arrangement i.e. with respect to the suit properties as well as the properties which were disclosed by the defendant no. 1 in his written statement and were not included in the suit property, that is, holding no. 94 of Sakchi Market and land situated in Mouza Gadhra.

27. This Court finds that there is a clear concurrent finding with respect to jointness and that there was joint family property and also that there was a joint family business from which the properties were acquired either in the name of defendant no. 1/plaintiff/in their join name or in the name of the plaintiff or the defendant jointly with 3rd party.

28. This Court finds that existence of joint family and also availability of the joint family nucleus to buy the property was duly established and there is concurrent finding of both the courts on these aspects of the matter in connection with which no substantial question of law has been framed and such findings have become final.

29. It has been held by the Hon’ble Supreme Court in the judgment reported in (2003) 10 SCC 310 (supra) that there is no presumption of a property being joint family only on account of existence of a joint family. It has been also held that one who asserts has to prove that the property is a joint family property. Further, it has been held that if a person who asserts that the property is a joint family property and proves that there was nucleus with which the joint family property could be acquired, then there would be a presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

30. Keeping in light the aforesaid proposition of law, this Court finds that the existence of joint family and also the existence of nucleus with which the joint family property could be acquired was duly established and proved before the learned trial court and such finding was upheld by the learned 1st appellate court. The plaintiff in the present case did not include certain properties in the schedule of the plaint seeking partition and such properties were holding no. 94 and properties of Mouza Gadhra which were disclosed by the defendant no. 1 in his written statement which were said to be purchased either in the name of the plaintiff or jointly in the name of plaintiff and the defendant no. 1. However, the plaintiff did not amend the plaint to assert that those properties were his self-acquired property. Further, no evidence was led by the plaintiffs to show that these properties were purchased from his own income, independent of the nucleus which was available to purchase the joint family property.

31. In the judgment relied upon by the appellant passed by the Hon’ble Supreme Court reported in (2003) 10 SCC 310 (D.S. Lakshmaiah & Anr. vs. L. Balasubramanyam & Anr.) it has been held that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

32. This court is of the considered view that the said judgment does not help the appellant in any manner. The original plaintiff, whose legal heirs and successors are the appellants before this court, was seeking partition and there is clear finding of the court that there was a joint family and the joint family properties were to be partitioned.

                  The finding with regard to existence of joint family and nucleus in the joint family to buy properties having been established and attained finality, the onus was on the plaintiff to plead and prove that holding no. 94 of Sakchi Market and land situated in Mouza Gadhra (properties not included in the schedule of the plaint and were alleged to be purchased in the name of the plaintiff from the joint fund of the joint family) were his self-acquired property. The defendant no. 1 never claimed that these properties were the self-acquired properties of the defendant no. 1 rather it was the specific case of defendant no. 1 that these properties were purchased by the joint family in the name of the plaintiff/joint name of the plaintiff and defendant no. 1 which was allocated to plaintiff in the family arrangement of the year 1971 and therefore in the suit for partition, the said properties were also required to be included.

33. This court finds that there were sufficient pleadings from the side of the defendant who objected to non-inclusion of that the property of holding no. 94 of Sakchi Market and land situated in Mouza Gadhra, in the schedule of the plaint seeking partition by asserting that these properties were purchased out of the joint fund of the family of the plaintiffs and the concerned defendants and were required to be included for partition.

34. This court also finds that concurrent findings have been recorded by the learned courts that the family was joint and there was sufficient nucleus of fund in the joint family to acquire properties. In such circumstances, the onus was on the plaintiff to prove that properties in Holding No. 94 and property of Mouza Gadhra were the self-acquired properties of the plaintiff. This Court also finds that there was specific pleading of the defendants that Holding No. 94 and property of Mouza Gadhra were purchased out of joint fund of joint family business. The plaintiff having failed to plead and prove that the said property was purchased from his individual income, the findings of the learned courts with respect to jointness of the said property and including the same for partition are not vitiated in law. The plaintiffs having neither pleaded nor proved that the property of holding no. 94 of Sakchi Market and land situated in Mouza Gadhra was his self-acquired property, the findings of the learned Courts regarding the jointness of said property consisting of holding no. 94 of Sakchi Market and land situated in Mouza Gadhra and consequently including the same for partition while directing partition of the suit properties is in accordance with law and does not call for any interference. In view of the aforesaid findings, he substantial question of law is accordingly answered against the appellants (plaintiffs) and in favour of the concerned respondents (defendants).

35. Accordingly, this appeal is hereby dismissed.

36. Pending I.A., if any, is closed.

37. Let a copy of this judgment be communicated to the court concerned through ‘e-mail/FAX’.