IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.271 of 2009 Binod Mehta & Anr Versus Punia Devi & Ors ---------------------------------- 5 9-11-2011 Heard. This appeal has been filed against the judgment decree dated 17th March, 2009 passed by Additional District Judge, Fast Track Court No.1, Aurangabad, in Title Appeal No. 36/99/43 of 2007 reversing the judgment and decree dated 9th July, 1999 passed by Subordinate Judge II, Aurangabad, in Partition Suit No. 191/86/27 of 1995. The matter arises out of a suit for partition where the plaintiffs have prayed for separation of their share in the land given in Schedule- I of the plaint. The genealogy of the family is not in dispute. However, the assertion of the plaintiffs that the suit properties are joint properties has been resisted by the defendants on the ground that there had been previous partition in the family and the suit properties had been acquired by the defendants out of their own separate income. The trial court has framed specific issues regarding unity of title and jointness of possession between the parties with regard to the suit properties and also with regard to non-joinder of necessary parties in the suit, and after considering the evidence and rival submissions of the parties it has been held that the suit properties are not joint family properties, as claimed by the plaintiffs and further that the suit also suffers from non-joinder of necessary parties. 2 In appeal, the appellate court, however, has reversed the findings of the trial court on the issue of unity of title and jointness of possession. However, as the issue of non-joinder of parties was not pressed by the defendant-respondent in the appellate court, therefore, the appellate court has also reversed the finding on that issue. The learned counsel appearing on behalf of the appellants has submitted that the appellate court has not considered material evidence on record and also the fact that the Patta dated 30th August, 1948, by which the suit properties have been claimed to have been acquired, has not been brought on record by the plaintiffs. It has been further urged that there are documents showing that the parties are dealing with the specific portions of the suit properties with definite boundaries which facts clearly indicate that there had been partition in the family. It has also been contended by the learned counsel that since the suit lands had been acquired in the year 1948 and the suit had been filed much thereafter, the bar of limitation will be attracted. By referring to the evidence recorded by the trial court in their favour, the learned counsel for the appellants has submitted that the trial court has correctly recorded the findings on proper appreciation of evidence, but the same have been arbitrarily interfered with by the appellate court. After hearing the submissions of the learned counsel for the appellants and perusing the judgments of the courts below, it appears that although the trial court had recorded the finding of 3 non-joinder of parties against the plaintiffs, but before the appellate court, however, the defendant-respondents had chosen not to press the said objection. In that view of the matter, there was no option before the appellate court except to reverse the finding given by the trial court in that regard. The appellate court thereafter has considered the pleadings of the defendants on the basis of the principle that the burden of proving previous partition lies upon the defendants, and thereafter has come to the finding that the defendants have not pleaded any mode of partition in their written statement nor had adduced any cogent evidence to establish the actual fact of partition. The fact that the common ancestor of the parties had sold away the lands of their ancestral village Sonoura had not been denied, but in absence of any explanation by the defendants as to what happened to that sale proceed, the conclusion reached by the appellate court that the said sale proceed formed the nucleus for acquiring the suit properties is not unfounded. Further, the appellate court has also considered the documentary evidence(Ext.3) dated 10-7-1956 by which the four brothers of Keshwar Mahto had jointly purchased the property in the year 1956 as well as the Exchange deed (Ext.3/a) dated 28-1-1958 showing the exchange of land jointly by the ancestors of the plaintiffs and the defendants in the year 1958. The appellate court was fully within its jurisdiction to reappraise the evidence on record and the findings of fact recorded by it are binding in second appeal unless the same are shown to be perverse. There is no scope for reappreciation of evidence in 4 second appeal and, therefore, the prayer of the learned counsel for the appellants to go through the evidence for interfering in the findings of fact is not acceptable. As the suit is admittedly for partition, the submission with regard to the bar of limitation, as made by the appellants, has got no force in view of the above facts and circumstances. The issues arising between the parties are concluded by concurrent findings of fact. There is no substantial question of law arising for consideration in this appeal which is, accordingly, dismissed. roy ( V. Nath, J.)