JUDGMENT N.D. Ojha, J.- The suit giving rise to the present second appeal was instituted by the plaintiff-appellants for partition of their share in the properties described at the foot of the plaint. Initially the plaintiffs claimed a half share in these properties but subsequently by getting the plaint amended they claimed a two-third share therein. According to the plaintiffs, Kalendra Singh was the common ancestor of the parties. He had two sons Mahabir Singh and Kaulesher Singh. Mahabir Singh had two sons Laxmi Singh and Haru Singh. Likewise Kaulesher Singh had two sons Umrao Singh and Mano Singh. The suit was instituted by Umrao Singh and Manno Singh. Laxmi Singh had a son Mahokh Singh. Mahokh Singh was not impleaded in the suit. The defendants to the suit were descendants of Haru Singh. The suit was contested by the defendant-respondents. According to them the properties in dispute other than mashin ahata no 5. makan no. 6 and land shown by letters LMNOPOR had already been partitioned and the parties were in possession over their respective shares. In regard to Mashin ahata no. 5, makan no. 6 and land shown by letters LMNOPOR it was stated that these properties were not ancestral but belonged exclusively to them and the plaintiffs had no interest therein. 2. After considering the evidence produced by the parties the trial court accepted the case set up by the defendants. In so far as mashin ahata no. 5, makan no. 6 and land shown by letters LMNOPOR are concerned, on the finding that these properties belonged exclusively to the defendant-respondents, it dismissed the suit. The rest of the properties were found to be still joint and a decree for partition was passed in regard to those properties holding that the share of the plaintiff-appellants was one-half therein. The decree of the trial court was assailed by the plaintiff-appellants in an appeal before the District Judge which was dismissed on 13th November, 1973. Aggrieved they have preferred this second appeal. 3.
The decree of the trial court was assailed by the plaintiff-appellants in an appeal before the District Judge which was dismissed on 13th November, 1973. Aggrieved they have preferred this second appeal. 3. Two points have been urged by counsel for the appellants in support of this second appeal, Firstly, it was submitted that while holding that the plaintiff-appellants were entitled only to a half share in the properties which were found to be still joint, the courts below were unduly impressed by the circumstance that in the plaint as it was filed initially only a half share was claimed by the plaintiff-appellants and it was only by amendment that they asserted their share in these properties to be two-third. According to counsel for the plaintiff-appellants it was established that the one-fourth share of Mahokh Singh in these properties had also devolved on both the parties equally inasmuch as another house was constructed by the parties for the use of Laxmi Singh father of Mahokh Singh at their own cost and Laxmi Singh had surrendered his share in the property in dispute with the result that the share of the plaintiffs became two-third in these properties. Having gone through the judgments of the two courts below. I find it difficult to accept this submission. The share of the plaintiff-appellants has not been determined to be half and not to be two-third only on the ground that they had initially claimed only a half share and it was only by a subsequent amendement that they claimed their share to be two-third. The courts below have considered the respective cases of the parties on the point as to whether one-fourth share of Laxmi Singh had been surrendered as alleged by the plaintiff-appellants consequent upon another house being built for him by the parties. In this connection the case set up by the defendant-respondents was that it was their ancestor Haru Singh and the one-fourth share of Laxmi Singh in the ancestral property in dispute was added to the one-fourth share of Haru Singh therein. The courts below have disbelieved the case set up by the plaintiff-appellants that a house was constructed by both the parties at their expense for the use of Laxmi Singh and that Laxmi Singh had surrendered his one-fourth share in the ancestral properties in dispute.
The courts below have disbelieved the case set up by the plaintiff-appellants that a house was constructed by both the parties at their expense for the use of Laxmi Singh and that Laxmi Singh had surrendered his one-fourth share in the ancestral properties in dispute. This finding is essentially a finding of fact based on appraisal of evidence and keeping in view the pedigree set up by the plaintiff-appellants themselves their share could only be half and not two-third in the ancestral properties in dispute. This is what the courts below have held to be their share and consequently no interference is called for with the finding recorded by the courts below on this point. 4. The second submission which was made by counsel for the appellants was that in holding that mashin ahata no. 5 makan no. 6 and land shown by letters LMNOPOR belonged exclusively to the defendant-respondents, the courts below have ignored an admission made by the defendant Gyanta Singh in his deposition in suit no. 411 of 1961, a copy whereof had been filed as Ex. 6. According to counsel for the appellants it was apparent in view of that admission that the plaintiff-appellants had their share in these properties also. In suit no 411 of 1961 Mahokh Singh was the plaintiff and Haru Singh and others including the plaintiff Umrao Singh were the defendants. In his deposition which has been relied on by counsel for the appellants, Gyanta Singh had stated that the properties in dispute belonged to the defendants. It was urged by counsel for the appellants that since Umrao Singh plaintiff was also a defendant in suit no. 41l of 1961 the deposition of Gyanta Singh that the properties in dispute belonged to the defendants contained a clear admission that Umrao Singh had a share in those properties. In so far as this submission is concerned it may be pointed out that Gyanta Singh was examined as D.W.I. in the instant suit also. He gave an explanation in regard to the aforesaid admission. His explanation was that by stating that the property in dispute belonged to the defendants he meant that it belonged to such of the defendants only who were descendants of Haru Singh. A perusal of the judgment of the lower appellate court indicates that after considering copies of various other documents of suit no.
His explanation was that by stating that the property in dispute belonged to the defendants he meant that it belonged to such of the defendants only who were descendants of Haru Singh. A perusal of the judgment of the lower appellate court indicates that after considering copies of various other documents of suit no. 411 of 1961 it has agreed with the trial court accepted the explanation given by Gyanta Singh. In Narayan v. Gopal (A.I.R. 1960 SC 100), it was held that an admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. In the instant case the alleged admission having been explained to the satisfaction of the courts below, could not be relied on by the plaintiff-appellants as an admission of their claim in the aforesaid properties by Gyanta Singh. Moreover, it is apparent not only from the statement of Gyanta Singh. D.W.I. but also from the statement of P.W.I. Umrao Singh that over the site of Mashin ahata no. 5, makan no. 6 and land shown by letters MNOPOR there was a house of some other person which fell down and the site was abandoned by him. The case of the plaintiff appellants was that over the aforesaid site possession was taken by the parties jointly and a machine was purchased and installed by them. In his deposition in the instant suit Gyanta Singh D.W.I. has stated that over the site of Makan nos. 5 and 6 there was house of one Ram Sabad, a portion of which was also parti, that the house of Ram Sabad fell down and subsequently he took possession over the site of the house on the parti land. His case further was that the machine had been purchased and installed exclusively by the defendant-respondents. The courts below have accepted the case of the defendant-respondents in this behalf and disbelieved the plaintiff-appellants. The finding recorded by the two courts below that Mashin Ahata no. 5 makan no. 6 and the land shown MNOPOR exclusively belonged to the defendant-respondents, is also essentially a finding of fact based on appraisal of evidence and cannot be interfered within a second appeal. 5. No other point has been pressed. 6. In the result I find no merit in this second appeal. It is accordingly dismissed with costs.