IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.471 of 2009 Saligram Bhagat Versus Parsuram Bhagat & Ors. ---------------------------------- 07. 08.12.2011 Heard the learned counsel for the appellant and learned counsel for the respondents. The appellant in this second appeal is defendant in the suit and is aggrieved by the judgment of reversal passed by appellate court. The suit has been filed for partition of the properties mentioned in the schedules of the plaint. The defendant contested the claim of the plaintiff on the ground that there had already been partition in the year 1995 of the joint family property and has asserted that if fresh partition is to be done, in that case it should also include the property at Mumbai standing in the name of the plaintiff. The trial court after considering the evidence and submissions of the parties has dismissed the suit of the plaintiff. However, in appeal, the appellate court has reversed the judgment and decree of the trial court and further held that the property in Mumbai is the self acquired property of the plaintiff and except that the rest properties are joint family properties. 2 Learned counsel appearing on behalf of the appellant has submitted that the appellate court has misconstrued the pleadings in the written statement of the defendant and has wrongly stated that no nucleus has been pleaded. It has been further urged that the appellate court has also wrongly considered the evidence of the defendants for recording the finding regarding the nature of the property at Mumbai. The learned counsel has made emphasis on Ext.B which is the affidavit sworn by the defendant Shaligram Prasad by which he had accepted to have given a motorcycle in gift to the daughter of the plaintiff at the time of her marriage and it has been urged by the learned counsel that this fact regarding gift in itself is sufficient to establish the jointness between the plaintiff and the defendants and also the fact that the property at Mumbai had been acquired, though in the name of the plaintiff, but out of the joint family fund. On the basis of these submissions, the learned counsel has emphasized that substantial question of law arises for consideration in this appeal. From a perusal of the judgment of both the 3 courts below as well as after the consideration of the submissions by the learned counsel it appears that the suit has been filed for partition of the property by metes and bounds. The defendants have pleaded that in case of partition as claimed by the plaintiff, the property at Mumbai should also be included as subject matter of partition, asserting the same to be joint family property and acquired out of joint family fund in the name of the plaintiff. The appellate court below has considered the evidence of the defendant in this regard on whom the burden of proof lies to establish existence of nucleus in the joint family and acquisition of the property at Mumbai from joint family fund and after consideration of the evidence it has come to the finding that the defendants have failed to prove the fact that the joint family was possessed of sufficient nucleus for acquisition of the property at Mumbai and further that the defendant has also not established the fact that the property at Mumbai standing in the name of the plaintiff had been acquired out of joint family fund. These findings by the appellate court have been arrived on the basis of evidence on record. The submission of 4 the learned counsel that the appellate court has wrongly considered the documentary evidence of the defendants including the Ext.B(affidavit by Shaligram Prasad) is misconceived. From the averments made in the affidavit at Ext.B (which has been read in the Court by the learned counsel) it does not appear that any specific statement has been made with regard to the joint status of the family and also with regard to the nature of the property at Mumbai and the only fact which has been stated therein is with regard to the gift of a motorcycle to the daughter of the plaintiff which fact in itself cannot be momentous enough to conclude that the property at Mumbai is a joint family property. The appellate court has rightly held that the said document (Ext.B) is not a relevant document to establish jointness. The issues arising between the parties in the suit have been concluded by the findings of fact arrived at after consideration of evidence on record. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)