This is a second appeal from the judgment and decree of the learned District Judge, Assam Valley Districts, dated 20th Octo­ber 1944, by which he affirmed the judgment and decree of the trial Court which had passed a preliminary decree for partition and separate possession of the plaintiffs' shares in the lands in suit. [2] The facts material to the appeal are these: One Jom Eanta died leaving four sons, (l) Srikanta, (2) Santeswar, (3) Sorbeswar and (4) Manteswar. Srikanta was the eldest son. Mante-ewar died in 1326 B. S. The eldest son died in 1935 or 1936. He left a son called Budrakanta, who also died leaving a widow defendant 1 and an infant daughter defendant 2, The suit was instituted by the surviving sons, Santeswar as plaintiff l and Sorbeswar as plaintiff 2 against three persons to whom the widow of Budrakanta is said to have granted a lease of the property in suit and who by virtue of the lease disposses­sed the plaintiffs from a portion of the property. The plaintiffs retained possession of certain properties on which they had their dwelling houses and which they alleged had been acquired by their eldest brother Srikanta in his capacity as karta of the joint family from joint family funds realised by the sale of the ancestral jote about a year after the death of Jom Das, their father. [3] The properties alleged to be acquired after the death of Jom Das by Srikanta com­prised a lease-hold obtained from the Gauripur Baj Estate of about 52 bighas of land described in Seh. Ka, and 22 odd bighas of land described in Sch. Eha acquired by Srikanta in his own name as karta of the family by purchase from one Raychand Das on 14th April 1910. It was the case of the plaintiffs that after these two ac­quisitions the three brothers lived together in joint possession of the two properties. On 2nd Ashar 1344 B. S., however, Santeswar separated and constructed houses on the bustee land described in sch. It was the case of the plaintiffs that after these two ac­quisitions the three brothers lived together in joint possession of the two properties. On 2nd Ashar 1344 B. S., however, Santeswar separated and constructed houses on the bustee land described in sch. Ka four years later in Baisakh 1348, the second brother Sorbeswar separated from his nephew Rudrakanta in mess but con-tinned to live in the family dwelling house; the immovable property, however, continued to re-main as joint property of the family until the widow of Rudra granted a lease of the property in suit to the defendants on 21st June 1948 and the lessees dispossessed her on 10th July 1943. The present suit was instituted by the plaintiffs on 20th July 1943. [4] The defence to the suit was that Srikanta had acquired the properties in suit out of his own earnings; that the properties were never joint family properties; they were never acquired as such or treated as such. The claim for partition was resisted on the ground that Rudra and after him his widow was the sole owner of all the properties in suit. Upon the pleadings, the trial Court framed the following issues : 1. Whether the suit is maintainable in its present form? 2. Whether the suit is bad for misjoinder of the defendants ? 3. Whether the properties in suit are the ejmali pro­perties of the plaintiffs and their late brother Srikanta as alleged in the plaint or the self acquired properties of the said Srikanta as alleged in the written statement ? 4. Whether proper valuation of the suit lands has been made and proper court-fees paid ? 6. Whether the suit is barred by limitation ? 6. Whether the suit is barred by provisions of S. 42, Specific Relief Act ? 7. To what relief, if any, are the plaintiffs entitled ? [5] The trial Court came to the conclusion that the property in sch. Ka was acquired from the joint family funds, that is to say from the balance of the sale proceeds realised from the Bale of the original paternal jote, after paying certain ancestral debts and that the land described in Sob. Kha was acquired from the earnings of the family derived from the produce of lands described in Sch. Ka, and that even if it was not established that the property described in Sch. Kha was acquired from the earnings of the family derived from the produce of lands described in Sch. Ka, and that even if it was not established that the property described in Sch. Kha was so acquired, it was to be treated as joint family property having been thrown into the common stock and treated as such. In this view the trial Court passed a preliminary decree for partition. [6] The lower appellate Court while affirming the judgment and decree of the trial Court observed : "On the contrary the plaintiffs have discharged the onus of proving from facts, circumstances and docu­ments that the family remained joint after the father's death ; continued so at the time of this acquisition out of joint family funds sufficient to form a nucleus and available to the acquirer Srikanta as karta of the joint family and remained so till the separation in mess and movables began; that dispossession took place from the rapid lands following the grant of the lease; that the plaintiffs came to Court within 10 days of it and that their still continuing on the joint family bustee land is evidence that even now the family has not separated in property but retained to this extent its conjoint character as it has done from Jom Das' death. The only cited ruling on which any emphasis was laid was the recent one in Amrita Lal Sen v. Surath Lal, A. I. B (29) 1942 Cal. 553 : (203 I. C. 188). I hope I have met the contention that the nucleus was sufficient by considering toe way in which the family was then circumstanced and the amount necessary for the acquisition by the karta out of the nucleus in his hand on behalf of the family. The same ruling contains a useful definition of presumption which fits the present case which from its very nature must depend to some extent on presumption drawn from established facts. It is not necessary to consider any case of throwing into the common stock; it is true that this case was not pleaded and though it is in a sense legal inference from proved facts, it may well be kept out of the picture, for I think that the case actually pleaded has been substantiated. From the above finding in regard to Sch. Ka the same finding regarding Sch. From the above finding in regard to Sch. Ka the same finding regarding Sch. Kha automatically follows." [7] We have carefully read the case reported in Amrita Lal Sen v. Surath Lal, A. I. B. (29) 1942 Cal. 553 : (203 I. 0. 188) and we are of the opinion that far from meeting the contention that the nucleus was sufficient, the learned ap­pellate Judge has not directed his mind to certain essential facts which the plaintiffs had to prove before any question of presumption could arise. The fact that the members of this family con­tinued to remain joint after the death of Jom Das is not of any importance on the facts of this case. All the brothers were minors except Srikanta at the date of the acquisitions and it was only natural that Srikanta should keep his minor brothers with him out of love and affection. Moreover we think the lower appellate Court was in error in assuming that the lands in suit were acquired out of joint family funds sufficient to form a nucleus. We adjourned the hearing of this appeal to enable Mr. Roy to refer us to any facts, circumstances or documents which indicated that the properties in suit had been ac­quired from the joint family funds sufficient to form a nucleus. Mr. Roy has placed before us a summary of the evidence led in the case in sup­port of his contention but we are unable to find anything in the summary to support the finding of the lower appellate Court that the properties in suit were acquired from the joint family funds sufficient to form a nucleus. There is no ' evidence whatsoever for instance to show what was the balance left out of the sale of the pro­perties left by Jom Das; there is no evidence to show what debts had been left by Jom Das and a which debts were discharged from the sale proceeds of the properties left by Jom Das; nor indeed is there any evidence to show that any balance was left over after discharging the alleged debts; nor again is there any evidence to show how the balance, if any, was utilised during the five years which elapsed between the lease and the purchase of the properties mentioned in Sch. Kha. In this view, we are unable to affirm the judgment and decree of the lower appellate Court. Kha. In this view, we are unable to affirm the judgment and decree of the lower appellate Court. In our opinion, the plaintiffs have failed to prove acquisition by their eldest brother of the properties in suit as alleged by them. [8] The result is that this appeal is allowed with costs throughout. The plaintiffs' suit will stand dismissed. Appeal allowed.