Short Note : The plaintiff-respondent filed the present suit alleging that he and the present appellant defendant are real brothers and that in village Palsoda Tehsil and District Ratlam, the two brothers have ancestral property which includes a house which is in possession of the defendant-appellant and lands bearing survey numbers 442, 443, 733 and 786. It was alleged that the appellant and the respondent being only two brothers they are entitled to half the share in this property. It was further alleged that originally these lands stood in the name of one temple (Ram-Mandir) and the father of the appellant and the respondent was worshiping that temple and therefore the land stood in his name. Now after the death of the father of the parties, the two brothers are entitled to half. The present defendant-appellant in his written statement admitted that the plaintiff-respondent is his brother and on that account he may be entitled to half share but it was pleaded by the appellant that this agricultural land is not the ancestral property and the house also is house acquired by himself as he has constructed it. It was further pleaded by the appellant that in the year 1960, the plaintiff-respondent filed a suit for partition which was suit No. 41 of 1960 and which was decided on 7-7-1961, but in this suit the plaintiff-respondent did not include the survey numbers for which he has now filed the suit, although he had included other survey numbers. It was therefore, contended that the suit is barred because of Order 2, rule 1 of CPC. The trial Court after framing the issues and trial decreed the suit filed by the plaintiff-respondent holding that this property in suit is the ancestral property. The trial Court also held that there is no bar under Order 2, rule 1 of CPC. On appeal, the lower appellate Court maintained the findings and also maintained the decree passed by the Court of Civil Judge Class II, Ratlam. Against this, the present second appeal has been filed. Held : The learned Judge of the lower appellate Court refused to consider the fact that originally these lands stood in the name of Ram Mandir, although it was the admitted position. Against this, the present second appeal has been filed. Held : The learned Judge of the lower appellate Court refused to consider the fact that originally these lands stood in the name of Ram Mandir, although it was the admitted position. The learned Judge thereafter only by considering a Khatoni of Samvat year 2020-2021 drew the inference that the property is ancestral; but failed to consider the admitted position that originally these lands stood in the name of Ram Mandir and the father of the parties was worshiping the temple. The learned Judge also failed to consider what has been even admitted by the respondent-plaintiff that the land was being auctioned every year and that the defendant was taking it on auction. He also admitted that there is no temple described as Ram Mandir since last 40 years. It is also admitted by the witness Purangir (P.W.2) examined on behalf of the plaintiff that originally this land was of the Ram Mandir but since last 30 or 40 years there is no temple. This witness also admits that the father of the parties left the village and went away. This witness also admitted that during Ratlam State this land was being auctioned per year and for about 8 to 10 years this was taken on auction by other villagers and later on since about 10 to 12 years it is in possession of the defendant-appellant. Another witness examined by the plaintiff is Hira Lal (P.W.3) who admitted that there was a Ram Mandir. But now there is no such temple. He admits that the father of the parties died about 30 or 40 years before. The defendant appellant has filed Ex.D-2 which is of the year 1945 which goes to show that in the year 1945 this land was auctioned in favour of the appellant. The defendant-appellant further states that on formation of Madhya Bharat this land was settled in his name. It appears that the Court below omitted to consider all this material evidence and only drew inferences from the copies of the two Khatonis of Samvat year 2020-2021. But as this evidence indicates long before after the death of the father of the parties and as the temple ultimately came to an end the State started auctioning this land and giving it for a year or two. But as this evidence indicates long before after the death of the father of the parties and as the temple ultimately came to an end the State started auctioning this land and giving it for a year or two. The evidence also indicates that after 7 or 8 years after the death of the father of the parties, the other villagers took it in auction and were in possession. These circumstances go to show that if this land was given as Inam for the worship of the temple ceased to exist and the father of the parties left or died the land was taken back by the State and it used to be auctioned per year by the State. 2. Learned counsel appearing for the respondent vehemently contended that the land continued to be recorded as the land of the Ram Mandir and that there is no order for resumption of the muafi granted for the temple. But it could not be disputed that after the temple ceased to exist and that the father of the parties left the village there is nothing to indicate that the muafi in favour of the father of the parties continued and the positive circumstance which is admitted by both the parties in their evidence is that the land was auctioned by the. State and that for some years it was given on auction to third party also. These facts clearly go to show that if there was any muafi in favour of the father of the parties that came to an end and the State, as it was in those days Ratlam State, started auctioning the land and giving it to anyone whose bid was accepted. These circumstances clearly go to show that, the muafi which was given for the worship of the temple was resumed as there was no temple in existence and the father of the parties had left the village. Admittedly thereaftar it has been held by the appellant that for some years he took it in public auction and later on formation of Madhya Bharat it was settled in his name. Admittedly thereaftar it has been held by the appellant that for some years he took it in public auction and later on formation of Madhya Bharat it was settled in his name. Consequently, the conclusion arrived at by the Court below that the land continued to be the property of the joint family is based on no evidence and the Courts below omitted to consider the material evidence and admitted facts as discussed above and this finding therefore arrived at by both the Court below cannot be accepted. Appeal partly allowed.