M. R. MALLICK, J. ( 1 ) THE Sub-Ordinate Judge, 10th Court, Alipore heard the T. S. No. 1/54 re-numbered as T. S. 49/73 together with T. S. No, 57/61, T. S. No. 32/62 and T. S. No. 103/65 analogously under order of the High Court, Calcutta and have delivered a common judgment and decree dated 18th December, 1974. ( 2 ) BEING aggrieved Satchidananda Samanta, the plaintiff in T. S. No. 1/54 has filed F. A. No. 21/76, Ranjan Bose, the plaintiff in T. S. No. 57/61 has filed F. A. No. 22/76 against the judgment and decree passed in T. S. No. 103/65, Achutananda Samanta, the plaintiff of that suit preferred the T. A. No. 183/75 and Satchidananda Samanta preferred T. A. No. 135/75 in the Court of the learned District Judge, Alipore. They have now been transferred to High Court, Calcutta so that F. A. No. 21/16 and F. A. No. 22/76 can be heard analogously with T. A. No. 135/75 and T. A. No. 183/75. Be it noted that nobody has preferred any appeal against the judgment and decree passed in T. S. No. 32/62. ( 3 ) THE facts of the above Titles Suits against which the above appeals have arisen may be briefly stated as follows :-saichidananda Samanta has filed T. S. No. 1/54 which has been re-numbered as T. S. No. 49/73. Satchidananta Samanta filed this suit for partition and accounts against Ranjan Kumar Bose, Smt. Khirodamoyee Dassi, his mother, since deceased and Achutananda Samanta, his elder brother. Subse- quently, Bishnu Pada Pramanik, Abdul Latif and others were added as defendants of that suit. The subject matter of the suit is 41 cents of land in Dag No. 614 of Khatian No. 231 of Mouja-Joy Chandipur, P. S.-Budge Budge with a pucca structure being a Cinema House thereon. Subsequently, 14 cents of land in Dag No. 621 under Khatian No. 286 of the same Mouja has also been included in the schedule of the property. The plaintiff has alleged that the suit property along with other properties belonged to their father, Gopi Nath Samanta who died in Jaistya, 1341 B. S. leaving Satchidananda and Achutananda, the two sons and widow, Khirodainoyee as heirs and legal representatives. They remained in joined possession of the properties including the suit property. The plaintiff has alleged that the suit property along with other properties belonged to their father, Gopi Nath Samanta who died in Jaistya, 1341 B. S. leaving Satchidananda and Achutananda, the two sons and widow, Khirodainoyee as heirs and legal representatives. They remained in joined possession of the properties including the suit property. Before his death Gopinath stacked huge quantities of bricks and kept in stock timbers, door, windows, window frames etc. With the consent of Satchidananda, Achutananda started construction of a Cinema House on Dag No. 624 utilising the bricks and timber materials. stacked by their father. As Satchidananda has not been given the accounts in respect of the income of the said cinema house inspite of repeated demands, he has brought this suit for partition claiming 8 annas share in the lands and structures and the business of the cinema house. He has impleaded Sri Ranjan Bose as the plaintiff has come to know Ranjan Bose has purchased 6 annas sha re of the land as well as the cinema house from Achutananda. With these allegations the above suit for partition and accounts have been filed. As in the written statement of Ranjan, it was disclosed that the added defendants. Bishnu Pada Pramanik and Abdul Latif were brought in by Achutananda as partners to the cinema business, Bishnu Pada and Abdul Latif have been added and one Keshab Chandra Rakshit has also been added as defendant Nos. 2 (Ka), 2 (Kha) and 2 (Ga ). Achutananda having died during the pendency of the suit has been substituted by his heirs and legal representatives. The suit was contested by Ranjan Kumar Bose, Achutananda Samanta and also by Bishnu Pada and Abdul Latif Ranjan Bose and Achutananda Samanta filed separate written statement and Bishnu Pada and Abdul Latif have filed a joint written statement. ( 4 ) THE written statement of Ranjan Bishnu and Latif are similar in nature and may be stated as follows :-satchidananda Samanta and Achutananda Samanta after the death of their father got the joint properties partitioned by metes and bounds and the disputed plots fell in the share of Achutananda. He alone made construction on Plot No. 624 and started cinema business with his own money. As he ran short of fund, he was forced to borrow Rs. He alone made construction on Plot No. 624 and started cinema business with his own money. As he ran short of fund, he was forced to borrow Rs. 45,000/-- in cash from Ranjan Bose in various instalments and sold 6 annas share of the disputed plot, cinema house and business to him for consideration of Rs. 20,000/ -. Bishnu Pada and Abdul Latif also jointly advanced to Rs. 65,000/- to Achutananda and they became partners of the said business each having 4 annas share therein. There was troubles amongst the partners over the profits and division of the cinema business and Bishnu Pada filed a Criminal Case against Achutananda for criminal breach of trust and a search warrant issued against him. Achuta then filed T. S. No. 78/53, which was disposed of and compromised. It was agreed upon in that compromise decree that Bishnu and Latif would have 4 annas share in the business. In the meantime Ranjan also filed a suit being T. S. No. 181/53 against Achutananda, Bishnu, Latif and several others for declaration of 6 annas share in the lands, cinema structures and cinema business. During the pendency of the suit Ranjan, Bishnu, Latif and Achutananda entered into a Partnership business and a Partnership Deed was executed by and between the parties. It was agreed in that Agreement that Ranjan had 6 annas, Bishnu and Latif had each 4 annas and Achutananda had 2 annas share in the Partnership business. It was further agreed that Aswini Kumar Pramanik, the brother of Bishnu would act as Manager of the Partnership business. Aswini Kumar as Manager looked after the said business. Satchidananda having no manner of title and possession in the property in suit, the present suit is liable to be dismissed. Achutananda in his written statement, stated that after their father's death he and Satchidananda decided to get their joint properties partitioned and appointed two Arbitrators and the Arbitrators on 23rd October, 1935 get their award and a document of partition was prepared in terms thereof. Achutananda in his written statement, stated that after their father's death he and Satchidananda decided to get their joint properties partitioned and appointed two Arbitrators and the Arbitrators on 23rd October, 1935 get their award and a document of partition was prepared in terms thereof. Two brothers and their mother got exclusively allotment of their properties, that the disputed lands fell in the allotment of Achutananda who at his own cost raised structures on the disputed plot for starting the cinema house and after taking licence actually started the cinema house, that he purchased the Talkie machine at his own cost and also purchased the other furnitures and articles for the purpose of said business. He denies that Satchidananda had anything to do for construction of the cinema house or running of the said business. He, however, claims that he is the exclusive owner of the structure and the sole proprietor of the business and denies that Ranjan has any share or that Bishnu and Latif have been inducted as partners in the said business. ( 5 ) T. S. No. , 58/58 which has been renumbered as T. S. No. 103/65 has been filed by Achutananda Samanta as plaintiff against Ranjan, Bishnu, Latif, Aswini and two others as defendants. In that suit he prays for a declaration that he is the exclusive owner of the cinema house and the business. In that suit he has reiterated that he has constructed the cinema house and started running the same on taking licence from the District Magistrate, 24-Parganas on 19th April, 1952. His case is that at the time of opening the cinema some brokers brought Ranjan to Achutananda who being a very simple and honest man could not understand the real intention of Ranjan and took some loan from Ranjan and on good faith signed some blank papers and cartridge papers thinking that some applications, were being written on them, that Bishnu and Latif were friends of Ranjan and Aswini was the brother of Bishnu and all of them in collusion with each other for the purpose of defrauding Achutananda induced him to execute a Deed in favour of Ranjan which they did not allow to read the contents thereof and the said Deed was later found to be a kot kobala of Rs. 9,000/-, but it was a pure and simple mortgage loan for Rs. 9,000/-, but it was a pure and simple mortgage loan for Rs. 6,000/- which amount was repaid in time, that Achutananda had no intention to execute a Deed of Conveyance in favour of Ranjan for Rs. 9,000/-, that then again Ranjan with the help of other defendant has fraudulently induced Satchidananda to sign on a Deed on 14th July, 1952 without giving any single copper coin as consideration and Satchidananda subsequently came to know that a kobala was fraudulently written out by the writer in employment of Ranjan in respect of 6 annas share in the land of Achutananda for the alleged consideration of Rs. 20,000/-, that the said Kobala is false, fraudulent without consideration and void, that Bishnu and Latif fabricated some documents alleged to be a partnership at will which was duly cancelled by the Registrar of Assurances on 6th April, 1953 and the said two partners wanted to terrorise the plaintiff by starting a false criminal case and the plaintiff had to institute a suit against them, that defendant No. 5, Keshab Chandra Rakshit falsely claimed some share in cinema business and filed T. S. No. 23/56 in the 3rd Court of Munsif, Alipore, but none of the, defendants has any manner or right title and interest in the property as well as in the cinema structure and business. It is further con-tended that Ranjan has filed a false suit being T. S. No. 181/53 against the plaintiff Achutananda making Bishnu, Latif and Keshab as parties thereto in the 7th Court of Sub-Ordinate Judge, Alipore, for a declaration of his 6 annas share in the property in the self-same property and the cinema business on the basis of the fictitious and fraudulent Sale Deed dated 14th July, 1952. Ranjan in collusion with the other documents and with fraudulent motive told Achutananda that they would pal him Rs. Ranjan in collusion with the other documents and with fraudulent motive told Achutananda that they would pal him Rs. 10,000/- for carrying on the business and asked him to sign documents at their bidding, that Achutananda threatened with dire consequences and was compelled to sign the two Deeds on 22nd December, 1953 and 28th December, 1953 which he later learnt to be the alleged special Agreement and a Power of Attorney, that immediately thereafter Achutananda revoked the Power of Attorney by sending a notice by registered post on 16th February, 1954 and filed a suit being T. S. No. 60/54 in the 3rd Court of Munsif at Alipore against Ranjan, Bishnu and Latif that those three persons filed a petition on 3rd March, 1954 along with a manufactured and fraudulently, got up draft Solanama praying for recording the same in T. S. No. 181/53, that the alleged draft was never consented to or signed by Achutananda who had never any knowledge of the same, that on 15th February, 1955 the terms of the Solanama was recorded by the Court, that Achutananda went in appeal before the High Court but was unsuccessful there and thereafter the present T. S. No. 58/58 has been filed for declaration of title as well as for the further declaration that the draft Solanama dated 28th December, 1953 is fraudulent and also for a declaration that the special Agreement dated 22nd December, 1953 the alleged Power of Attorney dated 28th December, 1953 and the alleged Kobala dated 14th February, 1952 are fraudulent and void. Defendants, Ranjan, Bishnu, Latif and Aswini being the defendant Nos. 1 to 4 have filed joint written statement. They deny the claim of, the plaintiff Achutananda that he is the exclusive owner of the cinema house and the business. They claim that the disputed cinema business is a Partnership business in which the plaintiff has 2 annas share, defendant Ranjan has 6 annas share and the defendant Nos. 2 and 3 Bishnu, and Latif has 2 annas each. They also deny the Sale Deed dated 14th February, 1952 to be fraudulent and claims that the same is a valid document executed by the plaintiff on taking due consideration. They also deny that they in collusion with each other fraudulently got the documents dated 22nd December, 1953 and 28th December, 1953 executed through Achutananda. They also deny the Sale Deed dated 14th February, 1952 to be fraudulent and claims that the same is a valid document executed by the plaintiff on taking due consideration. They also deny that they in collusion with each other fraudulently got the documents dated 22nd December, 1953 and 28th December, 1953 executed through Achutananda. Defendant No. 5, Keshab Chandra Rakshit in his written statement claimed 8 annas share in the partnership business. The defendant No. 6 Satchidananda, the brother of Achutananda and the plaintift in T. S. No. 1/54 has also contested the suit claiming that the property and Cinema structure is the joint property of the plaintiff and the defendant Achutananda's statement that he is the exclusive owner of the property is not correct and that for partition of his 8 annas share he has filed T. S. No. 1/54. ( 6 ) T. S. No. 57/61 has been instituted by Ranjan Bose against Achutananda, Bishnu, Abdul, Aswini and Satchidananda for a declaration that is the sole proprietor of the cinema business and also for a declaration that the Partnership Deed dated 26th December, 1952 along with the Agreement dated 22nd December, 195 3 and the Power of Attorney, dated 28th December, 1953 and the compromise decree in T. S. No. 181/55 in the 7th Court of the Sub-Ordinate Judge, Alipore are all vitiated by fraud, misrepresentation, undue influence and coercion. In that suit Ranjan has made out a completely different case from that he made in the written statement in T. S. No. 1/54 and T. S. No. 58/58 and for the first time alleged that he has come to know recently that Bishnu and Latif exercised fraud and undue influence upon Achutananda in causing him to sign the Agreement dated 22nd December, 1953, the compromise in the T. S. No. 191/53 and the Power of Attorney dated 28th December 1953. He also claimed that if he was aware of this fraud he would not have been a party to the Agreement dated 22nd December, 1953 and to the compromise in the T. S. No. 181/53 and the Power of Attorney dated 28t. h December, 1953. He also claimed that if he was aware of this fraud he would not have been a party to the Agreement dated 22nd December, 1953 and to the compromise in the T. S. No. 181/53 and the Power of Attorney dated 28t. h December, 1953. He also claimed that he invested a large sum of money and diverted his entire energy to the cinema business without any remuneration or profit of his own, that Bishnu and Latif never claimed or took any share in the business and Achutananda later on by acts or conducts, withdrew, retired and resigned from the business by relinquishing and repudiating his interest or by abandonment and Ranjan has, thus, become the sole proprietor of the cinema business known as Bina Cinema. Alternatively, he has prayed that if it is found that the said business is a partnership business of the plaintiff and all or some of the defendants Nos. 1 to 3, then a decree for dissolusion of the said partnership business may be passed. ( 7 ) ACHUTANANDA by filing a separate written statement has clearly denied all the allegations and has reiterated all the allegations made by him in the T. S. No. 58/58 and claims that he is-the exclusive owner of the suit property as well as the cinema business of Bina Cinema. Bishnu and Latif have reiterated in their joint written statements, the statements made by them in the written statement in. Suit Nos. 1/4 and 58/58. They also deny that Satchidananda has any share in the suit property or the cinema house. The defendant No. 5 Satchidananda has filed a separate written statement con- testing the suit and in the written statement he has reiterated the allegations made by them in T. S. No. 1/54. The last suit is T. S. No. 32/62 brought by Bishnu, and Latif against Ranjan, Achutananda and Aswini praying for accounts regarding the assets and liabilities of the Bina Cinema business claiming to be the partners of. the said business. The last suit is T. S. No. 32/62 brought by Bishnu, and Latif against Ranjan, Achutananda and Aswini praying for accounts regarding the assets and liabilities of the Bina Cinema business claiming to be the partners of. the said business. They alleged that in terms of the Agreement dated 22nd December, 1953 a irrevocable Power of Attorney was duly executed and registered on 28th December, 1953 and Aswini ran the cinema business on behalf of all the partners and took out the licence from the proper authority, that it was agreed between Bishnu, Latif and Ranjan that all moneys collected would be sent to Ranjan by Aswini and Ranjan would invest the same in a scheduled Bank in the name of the firm and all day to day expenses would be borne by Ranjan out of the said money and the accounts would be' submitted by Ranjan periodically, that Actutananda did not co-operate with other partners from the very beginning that between May, 1958 and 1961 about Rs. 3,00,0w/- were deposited by Ranjan but inspite of repeated demands by the plaintiff Ranjan failed to, render accounts even though on 31st March, 1961, he acknowledged his liability to render accounts but ultimately towards the end of July, 1961 he changed his mind and informed the partners that the rendition of the partnership accounts was not feasible and that, they have brought this suits for accounts of all the moneys received by Ranjan Bose from the constituted in the cinema business of Bina Cinema as partners. Aswini in his written statement has reiterated his claim in T. S. No. 58/58 and has denied that the plaintiffs are the partners of Bina Cinema and are entitled to any accounts. Ranjan in his written statement also denied that the plaintiffs had any share in the cinema business of Bina cinema as partners. Aswini in his written statement, however, supported the case of the plaintiff and stated that the business under his control ran from May, 1958 to July, 1961 and he sent all daily collection to defendant No. 3, amounting to Rs. 3,65,000/- more or less. ( 8 ) ORIGINALLY T. S. No. 1/54 was heard separately and was dismissed by the learned Sub-Ordinate Judge, Alipore on 14th July, 1958. 3,65,000/- more or less. ( 8 ) ORIGINALLY T. S. No. 1/54 was heard separately and was dismissed by the learned Sub-Ordinate Judge, Alipore on 14th July, 1958. Thereafter in appeal the Division Bench of the, High Court has observed that questions of title and other material issues which are awaiting decision in the other suits now remain in pending, it will be just and proper that the judgment and decree appealed from be set aside and the suit be tried analogously with the other suits in the same Court where the other suits are now pending. There- after, all the above suits have been tried analogously by the learned Sub-Ordinate Judge, 10th Court, Alipore. In T. S. No. 1/54 separate evidence was led by both the parties and in the other suits tried analogously evidence was led also by both the parties. ( 9 ) THE learned Trial Judge has considered all the evidence in all these suits in disposing of these four suits. He has accepted the case of Satchidananda that the suit property has not been partitioned between Satchidananda and Achutananda. He has also found that the major portion of the money for the purpose of the cinema house namely Bina Cinema house constructed on the suit property was borne by Achutananda, but the bricks and the other wooden materials stacked by Gopinath were also utilised for the construction of cinema house and Satchidananda was also contributed to some extent to the construction. of cinema house. But as the major portion of the money. was contributed by Achutananda, he would get 2/3rd share and the plaintiff, Satchidananda would get 1/3rd share. He has, however, found from, the evi- dence that Ranjan has purchased 6 annas share in the property and Bishnu and Latif have also 4 annas share in the cinema business. Consequently he has declared that Ranjan has 6 annas share in the land and business, Achutananda has. 2/3rd share of 2 annas and Satchidananda has 1/3rd share of 2 annas and the suit land and the business. He has also given the parties six months' time from date to effect partition by metes and bounds and also effect accounts amicably, failing which the Partition Commissioner and the Accounts Commissioner will be appointed at the instance of any party to the suit. He has also given the parties six months' time from date to effect partition by metes and bounds and also effect accounts amicably, failing which the Partition Commissioner and the Accounts Commissioner will be appointed at the instance of any party to the suit. T. S. No. 58/58 re-numbered as 103/66 has also been decreed in part declaring share of Achutananda therein to the extent of 2/3rd of 2 annas share in the land and the cinema business. All other prayers in the said suit have been refused. T. S. No. 57/61 has also been decreed impart in preliminary form dissolving the partnership business named Bina Cinema business of which Achutananda, Satchidananda, Ranjan, Bishnu and Latif were partners. He directed the parties six months' time for settling the accounts amicably, failing which an Accounts Commissioner would be appointed at the instance of any party to the suit. The learned Trial Judge has also indicated that Achutananda will render accounts for the period from 1st August, 1952 upto the date of his dispossession by the Receivers as admitted by him and Ranjan will furnish accounts for the period he has managed the business as admitted by him. All other prayers have been refused. T. S. No. 32/62 has also been decreed on contest in preliminary form against all the defendants. The parties are given six months' time from date for settling their accounts amicably, failing which an Accounts Commissioner will be appointed at the instance of any party to the suit. The learned Trial Judge has also indicated that a Joint Accounts Commissioner will be appointed in T. S. No. 57/61 and T. S. 32/62 as the accounting relates to the self-same business. ( 10 ) BEING aggrieved Satchidananda Samanta, the plaintiff in T. S. No. 1/54 has preferred F. A. No. 21/76. The contentions of the appellant are mainly as follows :-1. The learned Judge having found that the suit property has not been partitioned and this is a joint property of the plaintiff, Satchidananda Samanta and having held Ranjan Bose to have acquired 6 annas share in the 'said property ought to have granted the plaintiff the decree for partition in respect of plaintiff's 8 annas share and he erroneously held Bishnu and Latif to have acquired 4 annas share in the land and the business. 2. Bishnu and Latif have been inducted as partners by his brother. 2. Bishnu and Latif have been inducted as partners by his brother. He has no connection with the said partnership business and those persons might have share in the partnership business as partners but the learned Trial Judge committed a great error by holding that they have 4 annas share each in the land as well as the cinema business of Bina Cinema. 3. There being no sufficient evidence that Achutananda Samanta contributed major portion in erecting the structure of the cinema house and having found to have sold the 6 annas share in the property to Ranjan and also having procured money from other partners cannot claim that he would get 2/3rd share and the plaintiff would get 1/3rd share in the property. F. A. No. 22/76 has also been filed by Satchidananda Samanta in which the same points urged in F. A. No. 21/76 have been urged. Against the judgment and decree in T. S. 103/65 Satchidananda preferred T. A. No. 135/75 and Achutananda filed T. A. No. 183/75 before the District Judge, Alipore which have row been transferred to be disposed of analogously with F. A. Nos. 21 and 22/76. Satchidananda in T. A. No. 135/75 has also urged the same points urged in F. A. No. 21/76. Achutananda has in T. A. No. 183/75 has urged the following points :-1. The learned Trial Judge failed to appreciate the evidence properly and ought to have held that the suit property has been partitioned between Satchidananda and Achutananda and has been allotted to him. 2. There was sufficient evidence to hold that it was Achutananda, who constructed the cinema building, took the licence from the District Magistrate, 24-Parganas and has been running the said business exclusively. 3. Ranjan, Bishnu and Latif by practising fraud, undue influence and coercion created some fictitious Sale, Deed in favour of Ranjan in respect of 6 annas share and has also created some fictitious documents dated 22nd December, 1953 and the Power of Attorney dated 28th December 1953 and the learned Trial Judge ought to have, held that there was never any partner- ship business between Achutananda, Ranjan, Bishnu and Latif and he should have, declared the exclusive share of Achutaninda and the suit property as well as the cinema business and also declared the impugned Deeds as fraudulent and void. ( 11 ) ALL these appeals have been contested by Ranjan, Bishnu and Latif. Their contentions are that the learned Trial, Judge should have held that the suit property has previously been partitioned and should have declared the share of Ranjan to the extent of 6 annas share, that of Bishnu and Latif to the extent of 4 annas share each and that of Achutananda to the extent of 2 annas share. It is also contended that even if it be conceded that the suit property have not been partitioned by metes and bounds but there are several other joint properties belonging to Achutananda which Satchidananda has disclosed in evidence and the learned Trial Judge should have dismissed the suit on the ground of partial partition. ( 12 ) WE would, therefore, decide first as to whether the suit property was previously partitioned or not alleged by the appellant, Achutananda in T. A. No. 183/75. Satchidadanda the appellant in F. A. No. 21/76, F. A. No. 22/76 and T. A. No. 125/75 has urged that the finding of the learned Trial Judge that the suit property has not been previously partitioned is a correct finding, but the shares declared by the learned Trial Judge have been assailed by him. According to the appellant Satchidananda the learned Trial Judge should have declared the 8 annas share of Satchidananda in the suit property on which the cinema house, Bina Cinema stands, that he should have declared the share of Ranjan Bose to the extent of 6 annas share by virtue of purchase of that, share from Achutananda and remaining 2 annas share to Achutananda ( 13 ) EVEN though Ranjan, Bishnu and Latif did not prefer any appeal, they have also assailed the finding of the learned Trial Judge that the property has not been previously partitioned between Achutananda and Satchidananda. They have also taken the plea that even if the property is the joint property, Satchidananda and Achutananda admittedly had other joint properties and the T. S. No. 1/54 filed by Satchidananda only for partitioning the suit property is not maintainable and the suit is bad for partial partition, ( 14 ) THE first point which we have to decide is whether the suit property has previously been partitioned by Achutananda and Satchidananda. The case of Achutananda in this respect is that after their father's death he and Satchidananda decided to get their joint properties partitioned and appointed two Arbitrators on 23rd October, 1935 got their award and a document of partition was prepared in terms thereof and in that document the two brothers and their mother got exclusive allotment of properties and that the suit land fell in his allotment who at his own costs raised structures on the disputed plot for starting the cinema house and after taking licence actually started running the cinema business. He also denies that Satchidananda had nothing to do with the construction of the Cinema House or running of the said business. When admittedly the suit property was part of joint property in. herited by Satchidananda, Achutananda and their mother, then the onus is heavily upon the person who asserts that there was a previous partition is to prove the same to the satisfaction of the Court. In this respect. the evidence of Achutananda Samanta as D. W. 5 in T. S. No. 1/54 has to be looked into, In the examination-in-chief he has stated that after his father's death in 1341 there was a Salish and there was amicable partition in 1342 B. S. and the suit property fell to his share exclusively and since then he got separate possession of their allotments. He has further stated that he got lands of Khatian Nos. 321, 286 and 169 and that the suit property appertains to Khatian Nos. 321 and 286. His further evidence is that his brother got 85 decimal of lands at Banjalharia, 5 Bighas at Avirampur and a shop room appertaining to Khatian No. 168 of Mouja-Joychandrapur. However, this evidence contradicts the statement made in the written statement of that suit being T. S. No. 1/54, that two Arbitrators were, appointed to partition the suit property. The name of those two Arbitrators have been mentioned in paragraph 14 of the written statement, as Rangalal Bhuia and Birendra Kumar Basu. In the evidence Achutapanda did not make any whisper about the two Arbitrators who according to him were entrusted in partitioning of the property. No document relating to the amicable partition is referred to paragraph 10 of the written statement of Achutananda has been produced. Satchidananda in his deposition as P. W. 5 has categorically asserted that their paternal properties were never partitioned. No document relating to the amicable partition is referred to paragraph 10 of the written statement of Achutananda has been produced. Satchidananda in his deposition as P. W. 5 has categorically asserted that their paternal properties were never partitioned. It is true that Achutananda in his evidence claimed that as a result of some Salish there was amicable partition in property in 1342 B. S. But in cross-examination Achutanatida has made a damaging statement which clearly blows out his story of previous partition. He states in cross-examination as follows :-"the paddy lands and/or other lands have not been partitioned. Moreover, in cross-examination he has conceeded that he told the, plaintiff (Satchinanda Samanta) that he would start the cinema business and Satchidananda did not object. If the properties were really partitioned and came to the exclusive share of Achutananda, then there was no question of Achutananda taking the plaintiff's permission before starting a cinema business by rising a cinema house on the suit property. it is only when one of the co-sharers wants to make any construction on the joint property that he has to seek such permission, otherwise the other co-sharer may raise objection. That is a clear circumstance negativing the plea of previous partition. ( 15 ) THE evidence of other witnesses on the story of previous partition is also highly unsatisfactory. Nirode Behari Sarkar in his evidence has stated that once there was a talk of partition between the two Samanta brothers and so far as he knew the partition was effected. But his main evidence is to support the plaintiff's case that Satchidananda also was present when the cinema house was constructed and Satchidananda also used to take accommodation loan from him for making payment to the masons and labourers engaged for the construction of cinema house. In cross-examination he has not also been able to show as to whether other properties are separately possessed or jointly possessed by the two brothers. Therefore, the evidence of Nirode Behari Sarkar cannot be regarded as sufficient to prove the previous partition. The other evidence is that of Bishnu Pada Pramanik, who as D. W, 2 claims to have seen one Khata relating to partition, but no plot Nos. were given nor were any signatures of the plaintiff in that khata. This evidence of Bishnu Pada Pramanik does not also corroborate the story of Achutananda. The other evidence is that of Bishnu Pada Pramanik, who as D. W, 2 claims to have seen one Khata relating to partition, but no plot Nos. were given nor were any signatures of the plaintiff in that khata. This evidence of Bishnu Pada Pramanik does not also corroborate the story of Achutananda. Achutananda does not claim that any khata was prepared for partition. Bishnu also does not have any personal knowledge regarding previous parti- tion. D. W. 3, Kumud Kumar Barui of T. S. No. 1/54 is to the effect that Achutananda alone paid rent for Khatian Nos. 321 and 286 from 1352 B-5, and Satchidananda for the lands of Khatian No. 898 of Mouja-Banjalharia and Khatian No. 168 of Mouja-Joychandrapur. He, however, admits that Dhakilas in respect of Khatian No. 321 the names of two brothers have not been written as Marfatdars. If really there was a partition and the mutation of the name of Achutananda in the landlord's Sherestha, then there is no reason as to why the name of both the brothers would continue to be shown in the Dhakilas. Even the municipal tax receipts (Exts. 1 and 1 (a) in T. S. No. 1/54 the name of both the brothers are shown as assesses. On behalf of Achutananda the appellant in T. A. No. 183/75 as well as on behalf of the respondents of this appeal namely, Ranjan, Bishnu and Latif attention has been drawn to the evidence of the plaintiff, Satchidananda in T. S. No. 1/54 and it is submitted that the above evidence would clearly show that there was a previous partition it is submitted that even though Satchidananda in his evidence claimed that there was no previous partition yet he has admitted that the lands of Khattian No. 898 of Banjalharia is possessed by him exclusively. He also admits that his father left one shop road which he now occupies alone and his brother alone occupies another shop room in the Bazar. It is also submitted that it was Achutananda who alone obtained sanction from the municipality for building the cinema house and alone obtained the licence from the District Magistrate to run the cinema business there. It is also submitted that it was Achutananda who alone obtained sanction from the municipality for building the cinema house and alone obtained the licence from the District Magistrate to run the cinema business there. It is also urged that when the parties have been possessing the properties exclusively in separate allotments , then there is sufficient reason to hold that they were not possessing by amicable arrangement but by virtue of separate allotment by amicable partition. ( 16 ) WE have carefully considered the evidence of Satchidananda and that of Achutananda. As no other witness had any personal knowledge regarding whether the joint properties left by the father of Satchidananda and Achutananda were prevkiously partitioned or not , we are of the view that the onus being upon Achutananda to prove that there was previous partition, he has failed to discharge the onus and the finding of the learned Trial Judge in this respect based on proper evidence cannot be assailed. It is well-settled that the co-sharers may by virtue of amicable arrangement possess the joint properties exclusively by virtue of amicable arrangement. What Satchidananda in his evidence claimed that there was no previous partition yet he has admitted that the lands of Khatian No. 898 of Banjalharia is possessed by him exclusively. He also admits that his father left one shop room has admitted in his evidence regarding his exclusive possession of some of the joint properties is by virtue of such amicable arrangement. When Achutananda made out a case that two Arbitrators were appointed to amicably partition their properties in 1342 B. S. and the same was partitioned by those Arbitrators and separate allotments were given to him, Satchidananda and their mother yet in the evidence he has not been able to state anything as to what properties were allotted to their mother, which according to him, after the death of their mother would be equally divided between the two brothers. He has, however, said that some properties have been allotted to Satchidananda exclusively. Satchidananda had denied that fact. Satchidananda had admitted that their mother had several paternal properties. It is not at all probable that no document would be created to effect the partition of their properties. In that view the story of previous partition has been rightly dis- believed by the learned Trial Judge. Satchidananda had denied that fact. Satchidananda had admitted that their mother had several paternal properties. It is not at all probable that no document would be created to effect the partition of their properties. In that view the story of previous partition has been rightly dis- believed by the learned Trial Judge. ( 17 ) THE next point to be decided is whether Satchidananda is entitled to file this suit for partition only for a portion of the joint property. Before the learned Trial Judge the, specific point was raised that the suit was bad for partial partition. 1 find from the evidence of plaintiff, Satchidananda both in the examination-in-chief as well as in cross-examination, that he has stated that both the brothers have other joint properties than the present suit properties. In examination-in-chief Satchidananda has stated that his father left considerable properties and there Was no partition of said considerable properties. He has admitted that he has filed the suit for partition only in respect of plot No. 624 which is a plot of the cinema site having an area of 41 cents and plot No. 621 being the adjoining plot having an area of. 14 cents. So, admittedly Satchidananda has not brought into the hotchpot of the suit all the joint properties left by their father. In cross-examination he also admitted that plot Nos. 622, 623 and 624 appertaining to one Khatian No. 321 are Ejmali but he has brought this suit only in respect of plot No. 624. But have not included plot Nos. 622 and 623