JUDGMENT : A. K. Sinha, J - This second appeal is by the defendants against a JUDGMENT : of affirmance. The plaintiffs brought a suit for partition and claimed 1/5th share in the suit properties described in Schedule 2 of the plaint. 2. One Sheoraj Raut had two sons, Raghunandan and Chhotan. Chhotan died issueless and Raghunandan became the sole owner of the entire ancestral property. Raghunandan had two wives. By the first wife, he had a son Anandi, and by the second wife, he had four sons, namely, Roshan, Birchand, Udit and Munshi (Roshan being original defendant No. 1, Birchand being defendant No.2 and Munshi being defendant No.3). Plaintiffs are the sons of Anandi (son of Raghunandan from the first wife). 3. The plaintiffs' case was that their father Anandi had separated from his other four step-brothers about thirty years ago after the death of their father Raghunandan, and in that separation, the entire movables were partitioned, and out of the immovable properties, a part thereof came in separate cultivating possession of the parties according to convenience sake, but most part of the immovable properties remained in joint possession. According to the plaintiffs, no partition by metes and bounds had taken place. Further case of the plaintiffs was that Anandi (father of the plaintiffs) died leaving behind his two minor sons, that is, the plaintiffs, and after attaining majority, the plaintiffs requested the defendants to partition the properties, but of no avail. Further case of the plaintiffs was that they have 6 bighas 14 kathas 5 dhurs tenancy land, which included the ancestral land and the land acquired by the income of the joint family property. The plaintiffs also alleged that some lands were sold by the parties to meet their necessary expenditure and hence the lands sold by the parties should be adjusted in the share of the transferees. The plaintiffs alleged that as for some time distrust prevailed amongst the parties, hence it necessitated institution of the suit for partition of the entire immovable properties by metes and bounds, to which the defendants were not agreed. 4. The defendants contested the suit. Their defence was that Anandi had separated from his father Raghunandan and the four step-brothers during the lifetime of his father about 59 years ago, and at that very moment, there was a complete partition of the entire joint family properties. 4. The defendants contested the suit. Their defence was that Anandi had separated from his father Raghunandan and the four step-brothers during the lifetime of his father about 59 years ago, and at that very moment, there was a complete partition of the entire joint family properties. According to the defendants, there was also some ancestral, property in village Babuain (in Nepal) where Anandi had his Nanihal and hence when the aforesaid partition took place, Anandi liked to have the lands of Babuain in his share and, accordingly, the lands of Mouza Babuain were allotted to his share. According to the defendants, the lands of village Semra Bhola Tola fell to the share of Raghunandan and his remaining four sons. According to the defendants, Anandi settled in village Babuain and lived there for six or seven years. Within these six or seven years, Anandi sold away his entire property of village Babuain and returned back to his original village Semra Tola Bhola. According to the defendants, Anandi having no property, his father Raghunandan, out of mercy and pity, gave him 6 Kathas of land out of his own share, and besides this, he also purchased 1 Bigha 1 Katha in the name of Anandi and gave it to him for his maintenance. The defendants further alleged that Anandi and the plaintiffs disposed of these lands which were given by Raghunandan. The defendants alleged that 2 Kathas out of these lands was sold by the plaintiffs to defendant No. 7 also, 14 Kathas was sold to one Bishundayal Pandey and 4 Kathas to one Bhanu Rout. The defendants further alleged that Anandi during his lifetime had already sold his 7 Kathas of land to Roshan (defendant No.7), and in this way the entire landed property which was given by the father Raghunandan to his son Anandi for his maintenance had been disposed of. 5. Thus, according to the contesting defendants' case, in short, partition had already taken place and no property was joint, and in that view of the matter, they pleaded that the suit was fit to be dismissed. 6. The trial Court held that the plaintiffs' story of separation was correct and no partition had taken place till date. It further held that the plaintiffs were entitled to their share in the lands of Khata Nos. 116, 125 and 139 only which were the ancestral joint family properties. 6. The trial Court held that the plaintiffs' story of separation was correct and no partition had taken place till date. It further held that the plaintiffs were entitled to their share in the lands of Khata Nos. 116, 125 and 139 only which were the ancestral joint family properties. It further held that the properties covered by Exts. A/1, A/2, A/3 and A/4 were not partible as they were exclusively the properties of the defendants. In view of these findings, the trial Court decreed the suit and held that the plaintiffs were entitled to 1/5th share in the aforesaid Khatas which were ancestral joint family properties. 7. The defendants preferred an appeal. The lower appellate Court concurred with the findings of the trial Court and negatived the plea of the defendants, holding that there was no previous partition and it was only a separation as alleged by the plaintiffs. It further held that the lards of village Babuain were by way of gift to Anandi and were not allotted as share to him in the partition as alleged by the defendants. On these findings, the lower appellate Court has dismissed the defendants' appeal. 8. Two of the very material documents which were referred to by the trial Court and the trial Court, though considered these two documents along with others, took a view against the defendants appellants, have not been considered much, less referred to by the lower appellate Court. These documents are Exts. A and A/2. Ext. A is a sale deed dated 9.4.1951 executed by Ramautar (plaintiff No.2), in favour of one Surat Rout. By this deed 10 dhurs of laud of plot No. 1408 was transferred by plaintiff No.2 for Rs. 100/-. Ext. A/2 is another registered sale deed dated 6.9.1950 and it discloses that Ramautar (plaintiff No. 2) had sold two Kathas out of plot No. 1708/1744, Khata No. 140, to Chandar Rout (defendant No.7). These two documents executed by no else than the plaintiff No.2 himself are very material for being considered us they speak of the conduct of the parties as prevailing 12 to 14 years before the institution of the suit. 9. These two documents executed by no else than the plaintiff No.2 himself are very material for being considered us they speak of the conduct of the parties as prevailing 12 to 14 years before the institution of the suit. 9. It is well settled that where parties, have been in possession or land exercising rights of ownership over separate blocks of land for a long time, the, Court might well presume that these lands have already been divided and the rights of the parties defined with regard to them in such a manner as to preclude there being re partition. In view of this well settled principle of law; the aforesaid two documents are so material as needed to be considered by the final Court of fact. 10. Learned counsel appearing for the defendants appellants has submitted that the non-consideration of Exts. A and A/2 which were very material documents for the purpose of taking one of the other view of the law vitiates the finding arrived at by the final court of fact. It is well sealed that where the first appellate Court fails to consider a most material evidence in the case, the finding recorded by the first appellate Court is not binding in second appeal in the High Court. In the case of Smt. Sonawati and others v. Sri Ram and another (A.I.R. 1960 Supreme Court 466, at page 408), it was held that the first appellate Court having failed to refer to the material pieces of evidence, the conclusion arrived at by the first appellate Court could not be regarded as binding upon the High Court in second appeal. 11. Thus the submissions advanced by the learned counsel for the defendants appellants has much force. I am satisfied that the finding of the Court of appeal below to the effect that there was no previous partition is vitiated for non-consideration of the afore said very material evidence on record and it is unreasonable. 12. In the result, the appeal succeeds. The JUDGMENT : and decree of the court of appeal, below are set aside and the case is sent back to it. The court of appeal below is hereby directed to decide the appeal afresh after hearing the parties on the materials already on the record. 12. In the result, the appeal succeeds. The JUDGMENT : and decree of the court of appeal, below are set aside and the case is sent back to it. The court of appeal below is hereby directed to decide the appeal afresh after hearing the parties on the materials already on the record. It is expected that the court of appeal below will consider all the material evidence on the record and will then decide the appeal in accordance with law. However, in the circumstances of the case, there will be no ORDER :as to costs.