JUDGMENT 1. - This civil first appeal has been preferred under section 96, Civil Procedure Code, by appellants (defendants) against the judgment and decree dated 18.1.1997 passed by the learned Additional District Judge, No. 4, Jaipur City, Jaipur in civil suit No. 90/95 whereby the plaintiffs' (respondents) suit for partition has been decreed against the defendants (appellants). 2. The facts giving rise to the filing of this appeal briefly stated, are that the plaintiffs (respondents) failed a suit for partition against the defendants under section 96 CPC against judgment and decree dated 18.1.97 passed by Shri M.L. Sharma, RHJS ADJ No. 4, Jaipur City, Jaipur in Civil Suit No. 90/95 (38/81). (appellants), alleging therein inter-alia that the property as described in para 2 of the plaint was joint property of Laxmi Narain & Suraj Narain both sons of Roop Narain Poddar. The plaintiffs' case is that both the brothers having joint property and members of Hindu Undivided Family (H.U.F.) were having half share each in the suit property. Therefore, the plaintiff sought partition of the HUF by metes and bounds. 3. The defendants-appellants denied the plaintiffs' allegations and as per case set up in their written statement, the property was already partitioned by virtue of oral partition, which took place in Samvat year 2014 and since then they had separate kitchens and the property was in their separate possession and they had inducted tenants in their part of the partitioned property viz., shop etc. and after the partitioned property came to their share, they had carried substantial improvements over the same by way of additional construction and alteration on their parts of the partitioned property, in the shape of raising construction of shops on the ground, second third and fourth floors, respectively out of their own funds and as such the suit property had already been partitioned by way of oral partition amongst them (plaintiffs and defendants) much prior to filing of the present suit. 4. On the basis of the pleadings of both the parties, the learned trial court framed following issues:- 1. Whether the suit property is joint Hindu Undivided Family property and whether the plaintiffs are entitled to half share each as pleaded by them in the plaint ? 2. Whether the partition had taken place in Samvat year 2014 between Surajnarain and Laxminarain in respect of the suit property as alleged ? 3. Whether the suit property is joint Hindu Undivided Family property and whether the plaintiffs are entitled to half share each as pleaded by them in the plaint ? 2. Whether the partition had taken place in Samvat year 2014 between Surajnarain and Laxminarain in respect of the suit property as alleged ? 3. Whether the suit is barred on the principles of acquiensence and estoppel and deserves to be dismissed ? 4. Whether the defendants are entitled to special costs ? 5. Relief ? 6. Whether by virtue of construction of shops and rooms on the 2nd floor as well as roof top the defendants are entitled to succeed on the claim of adverse possession thereon ? 7. Whether the defendants have raised constructions as alleged by them over the suit property particularly, second, third and fourth floors i.e. rooms and shops out of their own income and of which they are entitled to claim their rights as alleged ? 5. After recording of the evidence of the parties and hearing them, the learned trial Court decreed the suit as indicated above. Hence this first appeal. 6. I have heard the learned counsel for the parties and examined the evidence available on the summoned record as well as legal aspect of the matter with reference to their respective contentions. 7. It has been contended by Shri M.M. Ranjan, the learned counsel for the appellants that in written statement the defendants have specifically denied the allegations of the plaintiffs by contending inter alia that in the month of Shravan of Samvat year 2014, both the brothers Surajnarain and Laxminarain had oral partition to their joint HUF property and after partition thereof they had spent more than Rs. 25,000/- over it by carrying out substantial improvements therein out of their own income. This fact has been vehemently disputed by the plaintiffs on the assertion that no oral partition had taken place of the HUT property as alleged by defendants in Shravan of Samvat year 2014 between Surajnarain and Laxmi Narain inasmuch as the defendants have intentionally with a view to withhold best information from the Court, has not given any specific date on which the alleged oral partition took place between two brothers how and in what manner has neither been indicated nor proved on record. Further more, even if the defendants have carried out any repairs or improvements over the suit property out of their joint funds as alleged, the same could not have been proved without rendering specific and cogent evidence in support of their case and hence in the absence of specific details and evidence in this regard, oral partition as alleged by the defendants is not plausible and believable since nobody would take risk of partitioning their joint property by way of oral partition particularly when financial implications resulting in disputes between real brothers are most likely involved and even if such oral partition had taken place in the manner as suggested by them, what prevented the defendants from leading any reliable and cogent evidence on record i.e. either by virtue of partition deed or even in case of oral partition the evidence of reliable witnesses in whose presence such a partition had allegedly taken place, all have remained unexplained on record. 8. On issue Nos. 1 & 2 the learned trial Court has arrived at the findings that since the suit property was ancestral and Suraj Narain & Laxminarain were real brothers and in the plaint as well as rejoinder it has specifically been stated that the suit property has been construed out of joint family funds and to support his case, the plaintiff has rendered cogent and reliable evidence by producing witnesses namely PW1 Manbhar Devi, PW2 Om Prakash, PW3 Radha Vallabh, PW4 Shyamsunder, PW5 Brij Mohan, & PW6 Satya Narain. The learned trial Court has further recorded a finding that it is an admitted case of the parties that the suit property was ancestral HUF property and Surajnarain & Laxminarain were real brothers, and that the onus of proof to the contrary that no such partition had taken place between these two brothers whereas the oral partition had taken place as per the defendants' case was heavily on the defendants and which they failed to discharge. Even as per the case set up by the defendants in their written statement it has been specifically pleaded that in Samvat year 2014 HUF property had been orally partitioned, then also, in order to discharge onus to prove such a pleading of the defendants, it was their duty to have specifically stated in written statement as to the date i.e. 16.11.1981 when such partition took place and as to which portion of the suit property had fallen to in whose share or favour, for which no details have been rendered by them in their pleadings or evidence on record. The circumstances as to what prevented the defendants from leading documentary evidence like partition deed or in its absence, leading any oral evidence to prove that such oral partition had taken place in the manner as suggested by them, all have remained unexplained on record. The trial court has observed that Anar Devi (defendant) sister of Surajnarain has not stated in her examination-in-chief that she was staying separately in view of differences having arisen between them over a dispute relating to family partition and for last 32 years. She has not further clarified in her evidence as to whether in Samvat year 2014 any oral partition had taken place in the manner alleged by her, rather from her evidence it is borne out that no partition deed was drawn up in writing and it orally agreed that the suit property should be partitioned between them. At the time of alleged oral partition, none else except two brothers, defendants and her mother-in-law were present. The learned trial Court has specifically observed that the defendant has not led specific evidence to corroborate version of oral partition as alleged by her. The persons whom she has mentioned and who were allegedly present at the time of oral partition had not been examined by her, and in the absence of which it cannot be established that any such oral partition took place at all nor it can be established that in view of differences between Laxminarain and Surajnarain they had separated. There was no basis of their having agreed to partition of the property between them and if it was so, why any specific proof by way of reliable and cogent evidence was not led by the defendants, has remained unexplained on record. There was no basis of their having agreed to partition of the property between them and if it was so, why any specific proof by way of reliable and cogent evidence was not led by the defendants, has remained unexplained on record. Hence, I find no error of law in the conclusion reached by/recorded by the learned trial Court. 9. The trial Court has further recorded finding to the effect that even on the basis of oral partition as alleged by the defendatns in Samvat year 2014, except evidence of DW1 Anar Bai (defendant appellant), no other witness was examined in support of her case. None of her witnesses supported her case regarding story of oral parititon or even presence of persons before whom oral partition is alleged to have taken place. Even Bhanwar (DW7), Sia Sharan (DW9), and DW10 Om Prakash who are close relatives of Anar Devi have not supported story of oral partition as pleaded by the defendants. 10. It is significant to mention that from the evidence led by the plaintiffs, it is very clear that the suit house is joint H.U.F. property and all expenses were incurred by them out of H.U.F. income. During life time of their mother-in-law Smt. Gopali who expired on 16.12.1980, the parties were living jointly in the same property and the expenses were also being incurred by them out of joint funds. This is factual and admitted position duly established from the evidence on record and for which plaintiffs have led very cogent and reliable evidence. Further from the findings recorded by the trial Court it stands established that the suit property is not only joint property but the expenses incurred on it were also met out of joint income. Hence in view of the findings recorded by the trial Court on issue Nos. 1 & 2, the suit property was ancestral of both the parties, namely Laxminarain and Surajnarain who are real brothers, and the expenses were incurred out of the joint H.U.F. income and having regard to the fact that they were not only living jointly during life time but also entitled to half share each in the suit property for which they have also reliable evidence by proving partition amongst them. I find no reason or justification to interfere with findings of the trial Court which have been arrived at on due appreciation of evidence. 11. I find no reason or justification to interfere with findings of the trial Court which have been arrived at on due appreciation of evidence. 11. I am further of opinion that oral partition as has been the case set up by the defendants is most unreliable and unsatisfactorily and being based on hearsay evidence is not at all acdeptable. From the evidence of witnesses examined by the defendants, it is borne out that DW1 Anar Devi (defendant) in her deposition has stated that at the time of partition, she was present alongwith her husband (Laxminarain), Manbhar Bai alongwith her husband (Surajnarain) and none else whereas DW5 Gopal & DW2 Nathulal have given out version to the contrary by referring to those relatives who have not been examined at all in evidence. 12. The best possible evidence of proving oral partition as set up by the defendants is Ration Card, electric and water bills which have not been produced in evidence for reasons best known to the defendants, the burden of which was also heavily on the defendants. Hence the learned trial Court has rightly drawn adverse inference against the defendants. The defendants are further guilty of suppressing evidence of the witnesses who ought to have been examined for proving the alleged oral partition and, therefore, the learned trial Court has rightly drawn adverse inference against them. 13. I am also of the opinion that as regards joint HUF property and the expenses incurred over it for its maintenance, upkeep, additions or alterations etc. It has come in evidence that these expenses had been derived out of the joint HUF funds. Hence, in view of direct and positive evidence available on record in this regard it would not be proper to hold otherwise. The plea of estoppel does not arise and the learned trial Court has rightly deeded issue No. 3 in favour of the plaintiffs. Likewise the learned trial Court in my considered view has rightly recorded findings on issue Nos. The plea of estoppel does not arise and the learned trial Court has rightly deeded issue No. 3 in favour of the plaintiffs. Likewise the learned trial Court in my considered view has rightly recorded findings on issue Nos. 4 & 6 and the findings have been recorded on due appreciation of evidence that the suit property had not been partitioned during life time of two brothers Laxminarain and Surajnarain and hence there was no question of any ouster of any of their family members who were living with them in the said property and since the parties were in occupation of the suit property till the death of their mother-in-law Smt. Gopal who died on 16.12.80 and also thereafter, the plaintiffs in my view have every right to continue with the possession of the same. As against this, no rent receipts have been produced by the defendants nor any evidence has been led on record in support of their plea of tenancy in absence of which, it cannot be inferred that they were tenants and the law is well settled that permissive or adverse possession cannot hold good as against the true owner. Even if the story of tenancy as has been the case set up by the defendants is to be accepted, even then in absence of any positive and direct evidence, it does not inspire any confidence in my considered view. Likewise, as regards issue No. 7 as to the construction having been raised on second, third and fourth floors over the suit property, by the defendants out of their personal income, the onus of proving the same was heavily on the defendants, they have failed to discharge. No permission or sanctioned plans for raising the said construction from the Municipal Authorities has been placed or proved on the record nor any statement of accounts for construction or repair works having allegedly been carried out by the defendants has also not been proved by adducing any evidence. Hence, in the absence of the best evidence having not been adduced, therefore, adverse inference has rightly been drawn against them and the findings recorded by the trial Court are accordingly confirmed and upheld. 14. My observations are fortified from the ratio of decisions relied upon by the learned counsel for the plaintiffs in Banshilal Vs. Mohanlal (1996 (1) RLR 137) and Annasaheb Bapusaheb Patil Vs. 14. My observations are fortified from the ratio of decisions relied upon by the learned counsel for the plaintiffs in Banshilal Vs. Mohanlal (1996 (1) RLR 137) and Annasaheb Bapusaheb Patil Vs. Balwant Babusaheb Patil ( AIR 1995 SC 895 ) . 15. In Banshilal Vs. Mohanlal (supra) , while deciding second appeal, this Court observed that the party who despite being in possession of the best evidence, if fails to produce the same, an adverse inference should be drawn against them. Likewise, the same principle would apply to First Appeal as well. 16. In A.B. Patil Vs. B.B. Patil (supra) , the Apex Court observed as under: "Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by dear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." The Apex Court also observed as under : "In the case of a Hindu joint family, there is a community of interest and unity of possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenery property. The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must he held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other members he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other." 17. As regards Ex.A.1 to Ex.A.36, no evidence has been led by the defendants to prove that these documents of bills pertained to the suit property. Therefore, issue No. 7 has also rightly been decided against the defendants. Since I have found no error of law or facts in the matter of appreciation of evidence in the findings arrived at by the learned trial Court on all the issues, the same are upheld. 18. Shri M.M. Ranjan, learned counsel for the appellants has placed reliance upon the decisions in the matter of Udit Narain Singh Vs. Board of Revenue ( AIR 1963 SC 786 ) , Kanaka Rathanammal Vs. V.S. Loganatha ( AIR 1965 SC 271 ) , Sawarna Lata Vs. KIF & M Works (AIR 1974 Calcutta 393) , Venkideswara Prabhu Vs. SPC Prabhu (AIR 1985 Kerala 265) , Kenche Gowda Vs. Sidde Gowda ( 1994(4) SCC 294 ) , Sitaram Vs. Surajbai (1971 (1) WLN 131) , Vinod Kumar Vs. Munna Lai Goel ( 1990(1) RLR 657 ) , M.N. Aryamurthi Vs. M.L. Subbaraya ( AIR 1972 SC 1279 ) , Ganesh Sahu Vs. Dwarika Sao (AIR 1991 Patna 1) , Radhamoni Vs. Dibakar (AIR 1991 Patna 95) , K. Obul Reddy Vs. B. Venkata Narayana Reddy ( AIR 1984 SC 1171 ) , Shankarrao Vs. Vithalrao ( AIR 1989 SC 879 ) , Pran Nath Vs. Rajinder Nath (AIR 1986 Delhi 121) , Ambika Devi Vs. Balmukand Pandey (AIR 1981 Patna 111) , Raghunath Tiwari Vs. Dibakar (AIR 1991 Patna 95) , K. Obul Reddy Vs. B. Venkata Narayana Reddy ( AIR 1984 SC 1171 ) , Shankarrao Vs. Vithalrao ( AIR 1989 SC 879 ) , Pran Nath Vs. Rajinder Nath (AIR 1986 Delhi 121) , Ambika Devi Vs. Balmukand Pandey (AIR 1981 Patna 111) , Raghunath Tiwari Vs. Ramakant Tiwari (AIR 1991 Patna 145) , and Gurupad Vs. Hirabai ( AIR 1978 SC 1239 ) . I have examined the ratio of the aforesaid decisions cited by Shri Ranjan. In my view, the ratio of said decisions are neither attraced nor applicable to the facts and circumstances of this case. 19. As a result of the above discussion, this appeal is dismissed. The impugned judgment & decree dated 18.1.1997 passed by the Additional District Judge No. 4, Jaipur City Jaipur in Civil Suit No. 90/95 (38/81) by which plaintiffs' suit for partition was decreed, is upheld. Keeping in view the fact that the impugned judgment has been upheld, the cross objections filed by the respondents stand dismissed. No order as to costs.Appeal Dismissed. *******