JUDGMENT : P.K. Misra, J. - The Defendants are the Appellants against a reversing decision. 2. Present Respondent No. 1 is the daughter of late Pura Pradhan, the original Plaintiff. The suit was filed for declaration of Plaintiff's title over the disputed land and for permanent injunction. The disputed property is Ac 20.06 decimals of land in village Bilaikami as described in the Schedule. The Defendants are the sons of late Hara Pradhan. It is the admitted case that late Hara Pradhan, Hari Pradhan and the Plaintiff himself were three brothers. It was claimed in the plaint that late Hara Pradhan separated in mess and estate by meres and bounds more than thirty years back. Late Had Pradhan was deaf and dumb and was living with the Plaintiff. It was claimed that the disputed property was purchased in the year 1959 by the Plaintiff from his own earnings in his own name and in the name of late Hari Pradhan. Hari Pradhan expired in the year 1970 and Hara Pradhan died a few years thereafter. It is claimed that the Plaintiff due to his old age was not able to cultivate the land himself and for the aforesaid purpose, he wanted to entrust the cultivation to his daughter Mayabati (present Respondent No. 1) and son-in-law. However, on 17-1-1986, the Defendants created trouble and threatened the Plaintiff and his daughter and son-in-law not to enter the disputed land and claimed that their name have been recorded in respect of the disputed land. The Plaintiff verified the Record-of-Rights on 28-1-1986 and came to know that father of Defendants 1 and 2 fraudulently managed to record his name in the R.O. R. along with the Plaintiff though the father of the Defendants did not have any right, title and interest over the disputed land. 3. The Defendants in a joint written statement denied the allegation that their father Hara Pradhan had separated from the Plaintiff and the other brother thirty years back. It was stated that the disputed property was the joint acquisition of the three brothers, but name of Hara Pradhan was not indicated as he was not present at the time of execution of the sale deed. It was stated that the disputed property was the joint acquisition of the three brothers, but name of Hara Pradhan was not indicated as he was not present at the time of execution of the sale deed. Subsequently, Hara Pradhan protested about omission of his name and joint application was filed by Plaintiff and two other brothers for recording the purchased land jointly in the name of three brothers and in Mutation Case No. 1460/67, the purchased property was mutated in the name of the three brothers jointly. It is stated that on the basis of family arrangement, Plaintiff and Ors. were separately possessing portions of the disputed land. It was claimed that Defendant No. 2 was the adopted son of Hari Pradhan and Defendants 1 and 2 were possessing separately the shares of Hara Pradhan and Hari Pradhan respectively. 4. The trial court found that the disputed property was the joint family property of the three brothers and had been subsequently mutated in the names of the three brothers jointly. It was also found that the three brothers had jointly sold portion of the purchased property to others. It was also found that Plaintiff and his brothers were jointly possessing and subsequently Plaintiff and Defendants were also possessing the disputed land in separate parcels. On these findings, the suit was dismissed. 5. Appeal was filed by the daughter and the widow of the original Plaintiff. The lower appellate court found that there was a partition among the three brothers. It was also found that there was no evidence on the side of the Defendants that the joint family had sufficient nucleus to acquire the disputed property. On these findings, the decision of the trial court was reverted and the suit was decreed. 6. The two Defendants have filed this appeal. During pendency of the appeal, name of Respondent No. 2, the widow of original Plaintiff, was expunged. 7. At the time of admission of the appeal, it was indicated that ground No. IX(b) of the memorandum of appeal was the substantial question of law for determination in the appeal. Ground No. IX(b) is extracted hereunder-"Whether the lower appellate court was justified in throwing the burden of proof of joint acquisition on the Defendants ?" The two other substantial questions of law indicated in the memorandum of appeal in ground Nos. Ground No. IX(b) is extracted hereunder-"Whether the lower appellate court was justified in throwing the burden of proof of joint acquisition on the Defendants ?" The two other substantial questions of law indicated in the memorandum of appeal in ground Nos. IX(a) and (c) respectively are as follows: (a) Whether the decision of the lower appellate Court is vitiated for non-consideration of the admission of the Plaintiff in Exts. A,B and C ? (c) Whether the lower appellate court went wrong in not considering the reasons assigned by the trial court in support of its findings ? 8. The main contention of the Appellants is that the lower appellate court completely misunderstood the scope of the allegations of the Defendants relating to nature of acquisition of the property and had reversed the findings of the trial court without considering the materials relied upon by the trial court. Having regard to the contentions raised by the parties and the questions involved, the substantial question of law required to be determined in the appeal can be re-framed as follows: Whether the lower appellate court misconstrued the case of the parties relating to nature of the disputed property and whether it has reversed the findings of the trial court without discussing the reasonings given by the trial court and without giving any cogent reason for coming to a different conclusion and by ignoring material evidence on record? 9. The main question before the courts below was regarding the nature of the property. There is no dispute that the property had been acquired in 1959 under Ext. 1 in the names of the Plaintiff and Hari Pradhan. It was the case of the Defendants that the property had been acquired from the joint contributions made by the brothers. It was not the case of the Defendants that the property had been acquired out of the surplus of the joint family property. The conclusion of the lower appellate court to the effect that there was no evidence of any joint family nucleus and as such the acquisition cannot be presumed to be a joint family property appears to be on the face of it misconceived. The question to be decided was as to whether the property had been jointly acquired from the joint contributions of the three brothers. 10. The question to be decided was as to whether the property had been jointly acquired from the joint contributions of the three brothers. 10. The Trial court negatived the case of the Plaintiff by relying upon the following circumstances: (i) The evidence on record indicated that after purchase under Ext. I, the three brothers were possessing the purchased property. (As a matter of fact, the Plaintiff himself as p. w. 3 stated that Hara Pradhan was also possessing part of the disputed property); (ii) Though the Plaintiff claimed in evidence that his signa tures on plain papers had been fraudulently obtained, no evidence had been adduced in support of such assertion. On the other hand, the Plaintiff himself admitted that he was present on the date on which the Revenue Officer allowed the mutation and he himself had put his thumb mark in the order-sheet of the mutation case. The mutation case record indicates that application for mutation was made jointly by the three brothers; (iii) Subsequently a portion of the purchased property was jointly sold by the three brothers, as evident from Ext. G; (iv) The property had been recorded jointly in the names of the Plaintiff and the Defendants in the Record-of - Rights. On the basis of such materials, the trial court,concluded that the case of the Defendants that the property had been acquired jointly on the basis of joint contribution was acceptable. In the alternative, it was also found by the trial court that the property was being treated as joint family property by the three brothers. 11. The lower appellate court without considering these aspects and analysing the relevant materials has simply concluded that there was partition among the three brothers and there was no evidence relating to joint family nucleus. As already indicated, the question of existence of joint family nucleus was immaterial because it was not the case of the Defendants that the property had been acquired from out of the joint family nucleus. The conclusion of the lower appellate court regarding partition also appears to be based on surmises. The Defendants have claimed throughout that on the basis of mutual arrangement, different portions of the disputed property were being possessed by different parties. Even the admission of the Plaintiff in evidence supports such statement of the witnesses examined on the side of the Defendants. The Defendants have claimed throughout that on the basis of mutual arrangement, different portions of the disputed property were being possessed by different parties. Even the admission of the Plaintiff in evidence supports such statement of the witnesses examined on the side of the Defendants. The Plaintiff while being examined as p. w. 3 had stated in cross-examination: ...About 10 to 12 years back Hara Pradhan came to village Limbed (Bilaikami). He stayed in a part of suit land, which I had given to him... The other witnesses examined on behalf of the Plaintiff also support the case of the Defendants. P. w. 1 stated that Defendants 1 and 2 have constructed a house on the suit land. It was further stated that the Defendants were possessing jointly the disputed land. P. w. 2 stated that the suit land is the land of the three brothers. 12. The lower appellate court has not considered the effect of joint application for mutation in the name of three brothers. It has merely stated that the mutation records do not create or extinguish title. The very fact that a joint application was made and subsequently, the property was directed to be mutated in the names of the three brothers jointly in presence of the Plaintiff clearly supports the case putforth by the Defendants. It is not a case of creation of title, but such mutation records can be considered as evidence in support of the case of the Defendants regarding joint acquisition of the property. 13. The trial court relied upon a stronger piece of evidence to come to a conclusion that the property was the joint property of the three brothers. Ext. G is the sale deed in respect of a portion of the property, which was the part of the purchased property. Ext. G is executed by the three brothers. Though this aspect was strongly emphasized by the trial court, the lower appellate court has completely ignored such aspect. Similarly, the admission of Plaintiff regarding possession of part of the disputed property by Hara is also completely ignored by the lower appellate Court. Ext. G is executed by the three brothers. Though this aspect was strongly emphasized by the trial court, the lower appellate court has completely ignored such aspect. Similarly, the admission of Plaintiff regarding possession of part of the disputed property by Hara is also completely ignored by the lower appellate Court. A careful perusal of the judgment of the lower appellate court clearly indicates that it has merely noticed the evidence in a general manner and has come to a conclusion different from the conclusion of the trial court without at all considering the reasoning given by the trial court. The mutation itself was effected in the names of the three brothers in the year 1967-68. The long silence of Plaintiff for about twenty years thereafter is clearly indicative of the fact that Plaintiff bad no objection regarding recording of the disputed land jointly in the names of the three brothers. The alienation under Ext. G in respect of a portion of the property clearly indicates that the Plaintiff himself had accepted the right of Hara over the disputed property. These documentary evidence on record coupled with the otal evidence on record, as relied upon by the trial court, clearly establish that the disputed property had been purchased jointly with the contribution of the three brothers or, at any rate, the property was treated for a long period as the joint property of the three brothers. Since the lower appellate court has not considered these vital aspects and come to a different conclusion without referring to the reasonings given by the trial court and without giving any cogent reason, the finding of the lower appellate court cannot be accepted and the finding of the trial court is to be confirmed. 14. On the basis of the aforesaid findings, the normal conclusion would be to dismiss the suit of the Plaintiff. However, dismissal of the suit may give rise to further litigation in future. The evidence on record indicates that the parties are in possession of different portions of the disputed property, but there has been no partition by metes and bounds. The properties have been recorded jointly in the names of the original Plaintiff and the two Defendants. The original Plaintiff has died in the meantime and has been substituted by his daughter. There is no dispute that Haraprasad died first and thereafter Haraprasad died. The properties have been recorded jointly in the names of the original Plaintiff and the two Defendants. The original Plaintiff has died in the meantime and has been substituted by his daughter. There is no dispute that Haraprasad died first and thereafter Haraprasad died. Admittedly, Hariprasad died without leaving behind any son or daughter. As such, the interest of Hariprasad in the property devolved upon the two other surviving brothers, namely the Plaintiff and Haraprasad and on the death of Haraprasad his interest in the property devolved upon the two sons (defendants ( 1 and 2). The plea of Defendant No. 2 that he was the adopted son of Hariprasad has not been accepted by the courts below. Such finding has not been challenged in the appeal nor there is any acceptable evidence in support of such plea. The interest of the original Plaintiff has now admittedly devolved upon Respondent No. I, Respondent No, 2 having expired in the meantime. Since all the parties interested in the property are before the Court, in the interest of justice, it is nec,essary that their separate shares should be carved out. Even though the suit was for declaration of title and for injunction, keeping in view the facts and circumstances of the case, it would be more appropriate to pass a preliminary decree for partition of the disputed property. Such a course had been adopted in the case reported in 1977 (1) C.W.R 121 (Bui Sahuani and Ors. v. Seshcidev Sahu and Ors.. Having regard to the facts and citcumseances of the case, while setting aside the decree of the lower appellate court, a prelii. nary decree for partition in respect of the disputed property is passed. In the said partition, the present Respondent Mayabati Biswal is entitled to half share and the two Appellants are together entitled to the balance half share. The parties may amicably partition the disputed land in the aforesaid proportion failing which it would be open to any of the parties to pray for a final decree by deputing a Commissioner for effecting portition. 15. Subject to the aforesaid directions, the Second appeal is allowed. There would be no order as to costs. Second appeal allowed. Final Result : Allowed