M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is defendant's second appeal against the concurrent findings of the lower appellate Court and the trial Court. Respondent/plaintiff presented original Suit no. 131/1976 in the Court of the Munsiff at Kunigal. The said suit was one for partition of the suit schedule properties on the plea that plaintiff and dcfcndanl were brothers born to the same father though to different mothers and therefore constituted a Hindu Undivided Family. It was further pleaded that all the suit schedule properties were joint family properties. Plaintiff pleaded that he was the son of the second wife born out of the wedlock. As against such pleadings, the defendant while admitting that plaintiffs mother was second wife, pleaded thai plaintiff was born even before his father took the second wife and therefore he should not be held to be a member of the Joint Hindu Family of himself and his father. He also pleaded that there was a partition between himself and his father even before 1945 and that items ho 4 of the suit schedule proper! ies were his self-acquired properties and not available for partition even if the plaintiff succeeded in his case. On such pleadings the trial Court framed as many as three issues which arc as follows:-"1. Does the plaintiff prove that he is the legitimate son of Hampe Singrcgowda?2. Does the plaintiff prove lhal he and the defendant were living in a joint Hindu undivided status?3. Docs the defendant prove that items 2 to 4 of the suit schedule propertiesare his self-acquired properties?4. Is" plaintiff entitled for partition and separate possession? In support of his case the plaintiff examined besides himself two other witnesses and got marked as many as 9 documents. As against this the defendant examined himself and two others and got marked as many as 9 documents in support of his case. On appreciating the evidence on record, the trial Court came to the conclusion that the plaintiff was the legitimate son of the father of defendant Kempaiah and as such was a member of the Hindu Undivided Family. He disbelieved the plea of partition as there was no clear evidence on the factum of partition and there were material discrepancies in the oral evidence of defendant's witnesses in regard to the factum of partition and mode of cultivation between the two. He disbelieved the plea of partition as there was no clear evidence on the factum of partition and there were material discrepancies in the oral evidence of defendant's witnesses in regard to the factum of partition and mode of cultivation between the two. Therefore, he held both on issues 1 and 2 in favour of the plaintiff. On Issue No. 3 regarding self-acquisition of certain items of suit schedule properties, besides the oral testimony of defendant Kempaiah himself, there was no other evidence to substantiate his claim that he was employed at a factory in Bangalore gainfully for over a period of 20 years, from the savings of such earnings that he had purchased the properties claimed to be his self-acquired properties by instruments of sale. Plaintiff, on the other hand, contended in his evidence that those items of properties were purchased out of the income of the properties of the joint family which were in the management of the defendant Kempaiah. In the absence of clinching evidence that defendant Kempaiah was gainfully employed in Bangalore, the trial Court chose to disbelieve his theory of self-acquisition of certain items of properties. In the result, the suit came to be decreed as prayed for. On appeal to the learned Civil Judge, tumkur, in R. A. No. 24/1981 on his file, the appeal came to be dismissed. Therefore this second appeal. ( 2 ) MR. YOGANARASIMHA, learned counsel for the appellant has strenuously urged that the Court ought not to have accepted the evidence led by the plaintiff in regard to the time of his birth, i. e. , whether it was anterior to his mother's marriage with his father or it was after the marriage. Undoubtedly the evidence in this behalf is oral on both the sides. Plaintiffs witnesses claimed that he was born out of the wedlock while the defendant's witnesses claimed that he was born before the marriage. There is no dispute that some years after the death of ihe first wife, i. e. , the mother of defendant Kempaiah, the second wife was taken. U is immaterial in what form the second marriage had taken place as that was not in issue. There is no dispute that some years after the death of ihe first wife, i. e. , the mother of defendant Kempaiah, the second wife was taken. U is immaterial in what form the second marriage had taken place as that was not in issue. If the trial Court, which has the advantage of studying the demeanour of the witnesses, come to the conclusion that the version put forward for and on behalf of the defendant is more reliable and recorded such a finding, this Court cannot find fault with it. ( 3 ) SIMILARLY, the factum of partition is not evidenced by any memorandum of partition or registered deed of partition. It is only the assertions made by the defendant in his written statement and oral testimony before the Court, to some extent supported by the version put forward by his witnesses. But, there is some discrepancy in the evidence of defendant's witnesses in regard to the cultivation of the lands. For these reasons, the trial Court has come to the conclusion that whatever might have been the arrangement in regard to cultivation between the defendant Kempaiah and his father during his life time could not evidence partition and therefore that was only an arrangement between the father and the son and there was no partition as such. ( 4 ) HOWEVER, Mr. Yoganarasimha, learned counsel, stressed on the fact of partition that after the death of Singri Gowda - the father of plaintiff and defendant kempaiah, plaintiffs mother had sold half portion of the family house to the defendant kempaiah be a registered sale deed and that evidenced that there was a partition. I do not see how such an inference could be drawn if the widow and her son were living in the village after the death of her husband and she sold half the share, something over which she had no right and that does not evidence prior partition during the life lime of the father of plaintiff and defendant. The law at the relevant time was clear that a Hindu widow had only limited estate in view of Hindu women's Right to Property Act, 1933 of the then Mysore. In that circumstance, that instrument cannot be a evidence of partition. Therefore, I cannot find fault with the trial Court on arriving at that conclusion. The law at the relevant time was clear that a Hindu widow had only limited estate in view of Hindu women's Right to Property Act, 1933 of the then Mysore. In that circumstance, that instrument cannot be a evidence of partition. Therefore, I cannot find fault with the trial Court on arriving at that conclusion. ( 5 ) SIMILARLY, in regard to acquisition of certain properties, beyond the statement of the defendant Kempaiah there is no evidence such as Muster Roll of the factory at which he worked evidencing duration of his employment, his income etc. However, mr. Yoganarasimha placed reliance upon the admission of P. W. 1, a witness on behalf of the plaintiff by name Hutchcgowda. In his cross-examination he has stated that he was aware that defendant Kempaiah had worked in Bangalore for some time but where, when and for how long he was not able to assert anything. When a party to a suit is in a position to put the best evidence available and fails to put that evidence, he cannot be permitted to rely upon any weakness in the evidence or case of the plaintiff, as Mr. Yoganarasimha, learned counsel tried to make use of the admission on the part of the plaintiffs witness. ( 6 ) IT was further argued by Mr. Yoganarasimha, learned counsel for the appellant, that a specific issue was not framed by the trial Court but that issue relating to prior partition was framed by the appellate Court and no opportunity was given for adducing further evidence. There are two hurdles in the way to accept this contention. The first is, the first appellate Court has used its discretion whether the evidence on record is sufficient to decide the issue which it has framed and secondly, as held by the Supreme Court in Nedunuri Kameswaramma v Sampathi Subba rao, AIR 1963 SC 884 , non-framing of a particular issue will not be fatal to the suit as long as the parties understand each others case and led evidence at the trial. That the defendant pleaded partition and led evidence in regard to partition is not in doubt as evidence by the Judgment of the trial Court. That the defendant pleaded partition and led evidence in regard to partition is not in doubt as evidence by the Judgment of the trial Court. Therefore, if there was evidence in the matter of partition pleaded by the defendant, then there was no need for recording fresh evidence for it would amount to directing fresh trial on an issue which has been indirectly decided in ihe matter as understood by the parties when they joined issues. ( 7 ) FOR the aforementioned reasons, I do not find any merit in this appeal which require interference with the findings of fact recorded by the two Courts and therefore, no substantial question of law arises for consideration. ( 8 ) THE appeal is dismissed. --- *** --- .