IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.464 of 2009 Shyam Bihari Singh Versus Bihari Yadaw & Anr. ---------------------------------- 7 16-11-2011 Heard Mr. Dhrub Narain, learned counsel appearing for the appellant and the learned counsel appearing on behalf of the respondents. The suit has been filed for partition of the properties mentioned in the Schedule of the plaint. The defendants resisted the claim of partition on the ground that there had been earlier partition in the family in the year 1950 and also on the ground that some of the properties in the suit are their self-acquired properties. Such properties which the defendants claimed to be their self- acquired properties have been mentioned in the sale deeds brought on record by way of Ext. C series. The trial court after considering the evidence, rival submissions and pleadings of the parties, came to the finding that the defendants have failed to establish the earlier partition in the family in the year 1950, as claimed by them, and further on the basis of the said finding the trial court proceeded to decree the suit with regard to the entire properties mentioned in the Schedule of the plaint. The appellate court, however, concurred with the finding of the trial court that there had been no partition in the year 1950 , as claimed by the defendants, but after reaching to this conclusion the appellate court has further proceeded to consider the case of self acquisition of the properties mentioned in the sale 2 deeds(Ext. C series) by the defendants and held the same to be the self-acquired properties of the defendants and on these findings allowed the appeal in part. The learned Senior counsel appearing on behalf of the appellant has submitted that the statement made in the plaint that the properties are joint and there has been no partition, has not been denied by the defendants specifically in their written statement and as such by invoking the doctrine of non-traverse such facts should have been taken to be admitted. It has further been urged by the learned senior counsel that once after affirming the finding of the trial court regarding non-partition in the year 1950 , as claimed by the defendants, there was no further scope to consider the existence of joint family or nucleus therein for the acquisition of the property mentioned in the sale deeds(Ext.C series) . On this basis the learned counsel has submitted that the appellate court has committed an error of law in allowing the appeal with regard to the properties mentioned in the sale deeds(Ext.C series). While considering the submission of the learned senior counsel, it is relevant to bear in mind that there is no such presumption in law that a Hindu joint family also possesses joint properties and further that a pleading is to be read in whole in order to gather the case of the party. The defendants’ definite case as emerging from the written statement is that the properties mentioned in the sale deeds(Ext.C series) are their self-acquired properties. It is not disputed that the sale deeds at Ext.C series 3 stand in the name of the defendants. The appellate court has examined the pleadings and the evidence of parties to find out whether the plaintiff has succeeded in establishing existence of nucleus in the joint family or any other income out of which the properties in the Schedule(Ext. C series) could have been acquired and has reached to the finding that no such nucleus or the fact that the properties standing in the name of the defendants had been acquired out of the income of the joint family property or its members could be established by the plaintiff. The findings of the appellate court are the findings of fact and it is difficult to interfere with the same in second appellate jurisdiction unless they are shown to be perverse. The perusal of the judgment of the appellate court shows that the correct legal principles have been applied and the findings have been reached on the basis of appreciation of the evidence on record. As such, there is no legal infirmity in the judgment of the appellate court. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. roy ( V. Nath, J.)