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2001 DIGILAW 1609 (RAJ)

Balu Ram (Though LR’s) v. Prem Ram

2001-10-04

PRAKASH TATIA

body2001
JUDGMENT 1. :- This appeal is against the judgment and decree dated 21-11-1979 passed by the Additional District Judge No. 2, Jodhpur in Civil Suit No. 21/1973 by which the learned trial Court decreed the suit of the plaintiff respondent no. 1 for partition and passed the preliminary decree holding that the plaintiff is having 1/7 share in the property mentioned in the decree which are required to be partitioned by metes and bounds. The plaintiff Prem Ram filed the present suit alleging that the ancestors of the plaintiff and defendant Jagannath was having sons Balu Ram (defendant no. 1), Prem Raj (Plaintiff), Amba Lal (defendant no. 2) and daughters Rukama (defendant no. 3), Raji (defendant no. 4) and Icharaj Kanwar (defendant no. 5). The wife of Jagannath Smt, Gogi Bai is defendant no. 6. According to the plaintiff, the ancestors of the plaintiff and the defendant Jagannath were having properties mentioned in sub-para (a) to (i) of para 2 of the plaint. Jagannath expired on 10-1-1971 at village Lavera Kalan. The property of the joint family property was not partitioned between the parties. The plaintiff claimed his share as 2/7 in the joint family property mentioned in para 2 of the plaint and sought relief of partition by metes and bounds. 2. The written statement was filed by defendant nos. 1 and 2 and it is stated that the prop erty mentioned in para 2(a) of the plaint was the property of the father of the plaintiff and his brothers (defendants) and partition took place in the year 1962. The house A-2 was given to the plaintiff in partition and the plaintiff is in exclusive possession of the above house since 1962. It is also submitted by the defendant nos. 1 and 2 that in partition, all the properties were partitioned in the life time of Jagannath. In addition to above mentioned house, plot mentioned in sub-para (c) of para 2 of the plaint also came in the share of the plaintiff and the plaintiff is in exclusive possession of the above plot. The defendants further gave details of the properties how they were distributed in partition and it is also stated that defendant no. 2 Amba Lal, after the death of his father, invested money and constructed the house and, in the same way, defendant no. The defendants further gave details of the properties how they were distributed in partition and it is also stated that defendant no. 2 Amba Lal, after the death of his father, invested money and constructed the house and, in the same way, defendant no. 1 also immediately after partition, on the land which fell in the share of defendant no. 1, raised two huts and, thereafter, in the Samvat Year 2028-29 constructed one 'Sal' and two 'Barana'. This property is in exclusive possession of defendant no. 1. The property mentioned in para 2(d) was also partitioned and the agricultural land of 12 bighas came in the share of the plaintiff and he is in possession of the above portion of the agricultural land since 1962 till the filing of the suit. The agricultural field of Navoda-wala measuring 16 bighas was partitioned and 12 bighas land of this came in the share of defendant no. 1 and defendant no. 1 is in possession of the above land since 1962. The remaining 4 bighas of land and the agricultural field of Voliya Vali Khedi measuring 8 bighas 2 biswas came in the share of defendant no. 2. The property mentioned in para 2(e) was said to be not an ancestral property but it was purchased by defendant nos. 1 and 2 from their own money which they borrowed from others. In this agricultural land (para 2(e)) there is no share of the plaintiff nor there was any possession of the plaintiff. It is stated that the plaintiff did not make any payment or price for this land and, therefore, the plaintiff had no share in the property. It is further stated that the deceased Jagannath was not doing any business and the shop as mentioned in para 2(f) is the property of defendant nos. 1 and 2. This shop was started in the year 1964 and only defendant nos. 1 and 2 invested money in this shop for their business. Therefore, the plaintiff had no share in this business or the shop. The tractor and trolley was said to be property of defendant no. 2. It was admitted by the defendants that Jagannath died in the Samvat year 2027. No reply or written statement was filed by defendant Nos. 3 to 7. 3. Therefore, the plaintiff had no share in this business or the shop. The tractor and trolley was said to be property of defendant no. 2. It was admitted by the defendants that Jagannath died in the Samvat year 2027. No reply or written statement was filed by defendant Nos. 3 to 7. 3. The trial Court framed the issues and the plaintiff appeared a PW-1 in support of his suit and also produced witness PW-2 Doongar Singh. Amba Lal appeared as DW-1 and Balu Ram appeared as DW-2. The defendants also produced witnesses, namely, DW-3 Hari Singh, DW-4 Dhanna Ram, DW-5 Bhag Singh and DW- 6 Shanker. 4. After trial, the trial Court held that the immovable properties were not partitioned between the parties as alleged by the defendants and the plaintiff failed to prove the house-holds goods and movable properties of the joint family but the agricultural land situated in Raikoriya village, was purchased in the name of three brothers, i.e., the plaintiff and defendant nos. 1 and 2 and their father Jagannath who was alive at that time. Therefore, it was treated as joint family property. The trial Court, while deciding issue no. 3, held that the shop was not proved to be joint family property business or property but while deciding issue no. 4 held that the tractor and trolley were the joint family property. The trial Court further held that it cannot be accepted that the defendants constructed the house shown in para 2(b) of the plaint from their own income and, in view of the decision given on the issues, the trial Court passed the preliminary decree declaring 1/7 share of the plaintiff and passed the order to appoint Commissioner to give effect to partition. 5. The appellants submitted an application under Order 41, Rule 27 , C.P.C. seeking permission to produce the copies of the sale-deeds executed by the seller Jor Singh in favour of the plaintiff and defendant nos. 1 and 2 by which the land of village Raikoriya Tehsil Ossian was purchased which was alleged by the plaintiff as joint family property and defendants submitted that this property was of defendant Nos. 1 and 2. 6. 1 and 2 by which the land of village Raikoriya Tehsil Ossian was purchased which was alleged by the plaintiff as joint family property and defendants submitted that this property was of defendant Nos. 1 and 2. 6. The learned counsel for the plaintiff-respondent Shri Deep Chand Sharma admitted two sale-deeds of 17-12-1969 and also gave his no objection for taking these documents on record and, thereafter, the matter was passed over and the arguments were heard on 7-9- 2001. In view of the fact that these documents are relevant documents for the just decision of the issues involved in this appeal, they are taken on record and since the documents have been admitted by the plaintiff, therefore, it requires no further proof. 7. The learned counsel for the appellants submitted that the trial Court committed serious illegality in deciding issue no. 1 against the defendant-appellants and in favour of the plaintiff. According to the learned counsel for the appellants, the trial Court even passed the judgment and decree only on the basis of assumption and ignored the evidence produced by the parties and also ignored the material piece of admission even made by the plaintiff himself. According to the learned counsel, to prove oral partition there are sufficient material available on record and all the circumstances are available from which it can be conveniently gathered that the property of the deceased Jagannath was partitioned and all the parties acted upon the partition, took possession of the property and invested their money over the property which fell in the share of the party. It is also stated that there is a clear admission of the plaintiff that the plaintiff did not pay any payment in purchasing the agricultural field of Raikoriya village. The plaintiff further failed to prove that this land was purchased by the father of the plaintiff. The learned counsel for the appellants vehemently submitted that the plaintiff failed to prove documentary evidence which were in existence with respect to the purchase of the agricultural land of Raikoriya and of the tractor and trolley etc. The plaintiff further failed to prove that this land was purchased by the father of the plaintiff. The learned counsel for the appellants vehemently submitted that the plaintiff failed to prove documentary evidence which were in existence with respect to the purchase of the agricultural land of Raikoriya and of the tractor and trolley etc. There is an admission of the plaintiff that he himself invested money in the house in which he is residing and also admitted that in another house, defendant Amba Lal is residing in half portion and defendant Balu Ram is residing in other half portion and they are residing since start and further admitted that he was ousted from the above house. According to the learned counsel for the appellants, it was the duty of the plaintiff to establish that there is joint family property despite the fact that, admittedly, the plaintiff was residing in separate house and invested money over the above house and defendant nos. 1 and 2 are living in separate portion of separate house. According to the learned counsel for the appellants, the credibility of the plaintiff has been totally shaken and he cannot be relied upon even for the purpose of rebutting the evidence of the defendants. 8. The learned counsel for respondent No. 1 submitted that in case joint family property once it is admitted that the property was ancestral and joint then burden lies upon the person who alleges partition of the property to prove the partition. According to the learned counsel for respondent no. 1, the defendants failed to prove the alleged partition, therefore, the trial Court has not committed any illegality in passing the decree for partition. 9. I perused the record and the statements of the parties. 10. PW-1 Prem Raj (plaintiff) stated on oath before the trial Court that the property given in the plaint was the ancestral property being property of father of the plaintiff and defendants No. 1 and 2 are the brothers of the plaintiff, defendants No. 3,4 and 5 are the sisters and defendant No. 6 is the mother of the plaintiff. In crossexamination, the plaintiff admitted that the house shown in para 2(a) is in possession of the plaintiff and defendants are not residing in this house. In crossexamination, the plaintiff admitted that the house shown in para 2(a) is in possession of the plaintiff and defendants are not residing in this house. The plaintiff invested his money and the plaintiff is residing in this house since 8-9 years but denied the suggestion of the defendants that the plaintiff is residing in this house since 1962. He further stated that the house shown at S. No. 2(b) of the plaint was constructed in the lifetime of father of the plaintiff and the plaintiff's father was residing in this house. This house was constructed 25 years ago and in this house, Amba Lal is residing in half portion and Balu Ram is residing half portion. It is further stated that they were living in this house since beginning and, thereafter, admitted that he was living in this house but he was ousted from the house and started living in the house shown in para 2(a) of the plaint. He denied the possession over the plot given in para 2(c) of the plaint and also denied the partition. The plaintiff further denied that agricultural land of Nediya-Wala measuring 12 bighas is in possession of the plaintiff. He stated that the agricultural field of Raikoriya was purchased by the plaintiff's father along with the plaintiff and two brothers defendant Nos. 1 and 2. This land was purchased by registered sale deed and he is not having knowledge of the seller and, thereafter, admitted that he did not pay any amount for purchase of this land. It is stated that the tractor and trolley were purchased in the lifetime of the father of the plaintiff and this tractor was transferred in the name of Amba Lal alone. In cross-examina- tion, he further stated that it is wrong to say that the name of father of the plaintiff is not given in the sale deed for purchase of the agricultural field of Raikoriya. 11. PW-2 Doongar Singh stated that he is knowing the plaintiff and the defendants and also knowing Jagannath and he stated that Jagannath was doing the business and also doing the business of moneylending and he was having the tractor. The age of PW-2 Doongar Singh is shown to be 35 years. In cross-examination he stated that the age of Jagannath was 70-80 years at the time of death. The age of PW-2 Doongar Singh is shown to be 35 years. In cross-examination he stated that the age of Jagannath was 70-80 years at the time of death. PW-2 Doongar Singh has no knowledge in whose name the tractor is registered. In cross-examination he admitted that Balu Ram filed one suit against PW-2 Doongar Singh in the Court of S.D.O., Phalodi and he was the accused in the case filed by Balu Ram. 12. In rebuttal to the above evidence, DW-1 Amba Lal stated that the property of the deceased Jagannath was partitioned in the Samvat year 2019 and, in partition, the house shown in para 2(a) of the plaint was given to the plaintiff. The agricultural land of Navoda Bera share of one plot was also given to Balu Ram. He stated that one agricultural field Voliya Vali Khedi was given to DW-1 Amba Lal and 4 bighas of land of Navoda Bera was also given to him. He further stated that agricultural field of Raikoriya was purchased by defendants Amba Lal and Balu Ram by contributing Rs. 3000/- each and by borrowing Rs. 6000/-. This land was not purchased by Jagannath, their father, or by the plaintiff. It is stated that the tractor No. 5793 and trolley No. 3836 are the property of the defendant Amba Lal purchased by the defendant and this was sold by the defendant. It is stated that DW-1 Amba Lal is residing in his own house which was purchased by Amba Lal himself and further stated that, on the plot, which was given to Amba Lal in partition, Amba Lal constructed the house by investing his own money and also gave details of the other properties. 13. DW-2 Balu Ram also stated that the properties were partitioned in the Samvat Year 2019 and gave details of the properties how they were given to the parties in partition. 14. DW-3 Hari Singh stated that at the time of partition in the Samvat Year 2019 he was called and the partition took place in his presence. He also gave the details of the distribution of the property. 15. DW-4 Dhanna Ram, stated that he was driving the tractor of Amba Lal and he saw the papers of the tractor and also stated that Amba Lal was residing all alone in the Lavera. He also gave the details of the distribution of the property. 15. DW-4 Dhanna Ram, stated that he was driving the tractor of Amba Lal and he saw the papers of the tractor and also stated that Amba Lal was residing all alone in the Lavera. Prem Raj is residing in his old house whereas Balu Ram is having one 'Bada' and they are having their own separate business and living. 16. DW-5 Bagh Singh stated that 12 bighas of land of old agricultural land was given to the plaintiff and 12 bighas land was given to each of the defendants Amba Lal and Balu Ram. One house was given to the plaintiff. Half share of the 'Bada' was given to Amba Lal and half share of the 'Bada' was given to Balu Ram and in cross-examination he gave further details of the properties of the parties. 17. DW-6 Shanker stated that agricultural land of Raikoria was partitioned by Amba Lal and Balu Ram and the plaintiff was in service at Samadari at that time. The plaintiff stated that when he came back he will make payment of the purchase price but ultimately the plaintiff did not give any amount of the purchase price. 18. The trial Court found that there is no documentary evidence in support of the partition. None of the Sarpanch or Upsarpanch was produced by the parties. No revenue record was produced by the parties. Therefore, the trial Court held that the property is joint family property. The witnesses DW-3 and DW-5 were not believed by the trial Court in view of their age. The trial Court held that the oral evidence produced by the plaintiff is not sufficient evidence to prove the oral partition and observed that even after when partition took place 12 years ago then why the pass-book of the agricultural land was having the name of three brothers. For the two houses and one plot, the trial Court observed that it is not clear in what manner above property was partitioned. The trial Court observed that it the entire property was partitioned then what was left in the share of the father of the plaintiff and defendant Nos. 1 and 2 and, therefore, the plea of partition was not accepted. The trial Court held that the plaintiff could not prove the movable properties. 19. The trial Court observed that it the entire property was partitioned then what was left in the share of the father of the plaintiff and defendant Nos. 1 and 2 and, therefore, the plea of partition was not accepted. The trial Court held that the plaintiff could not prove the movable properties. 19. A careful reading of the pleadings of the parties as well as the evidence, it comes out that the plaintiff has filed the suit for partition alleging that this is a joint family property, whereas the defendants have stated that the property was partitioned in the year 1962 in the lifetime of father of the plaintiff and the defendants. It is relevant to mention here that suit was filed by the plaintiff who is one of the members of the family consisting total seven members. This also came from the evidence that the plaintiff was in the service at Samdari and the plaintiff in his evidence admitted separate residence of the plaintiff and defendant Nos. 1 and 2. It is true that in a suit for partition, once property is found to be ancestral property, nothing more is required by the plaintiff to prove and the burden lies upon the other party who alleges that the property was partitioned. Oral mode of partition is also a mode of partition and to prove the fact of oral partition, the party who alleges partition, is required to prove the partition and the circumstances. Here in this case, the defendants appeared in the witness-box, gave statements on oath before the Court below. The defendants DW-1 and DW-2 gave details of the properties and also gave details of the properties which fell in the share of each of the plaintiff and defendant Nos. 1 and 2. It is relevant to mention here that none of the defendant Nos. 3,4,5 and 6 who are sisters and mother of the plaintiff and defendant Nos. 1 and 2 contested the suit. Therefore, it appears that defendant Nos. 3 to 6 had no interest in the result of the suit up to the extent of losing their right, title and interest in the property if the contention of the defendant Nos. 1 and 2 is accepted of the oral partition. Even none of the defendant Nos. 1 and 2 contested the suit. Therefore, it appears that defendant Nos. 3 to 6 had no interest in the result of the suit up to the extent of losing their right, title and interest in the property if the contention of the defendant Nos. 1 and 2 is accepted of the oral partition. Even none of the defendant Nos. 3,4,5 and 6 appeared in the witness-box either in support of the plaintiff or in support of defendant Nos 1 and 2. Their indifference to the claim of partition and indifference to their property right are also relevant factors, may not be independently a reason for holding partition but cannot, be ignored. 20. To see whether, the defendants are able to prove by the oral evidence, a look at the statement of DW-1 and DW-2, it appears that they have described the details of the partition disclosing how the property was partitioned and which of the property fell in the share of which party. Even according to the defendants, it is not a case of complete exclusion of the plaintiff from the joint family property. They admitted that the property which was given to the plaintiff in partition, there is no contradiction in the evidence of DW-1 and DW-2, with respect to the distribution of the properties. According to DW-1 and DW-2, the partition took place in the lifetime of their father in the Samvat Year 2019. The trial Court merely observed that when the pass-book is in the joint name of plaintiff and defendant Nos. 1 and 2, then this is a suspicious circumstance with respect to the partition but ignored the material fact that the plaintiff also stated that in the house in which the plaintiff is residing, he invested money and the defendants are not residing in this house. He further admitted that he was ousted from the house in which defendant Nos. 1 and 2 are residing. He further admitted that in the house, in half portion Amba Lal (defendant) and in half portion Balu Ram (defendant) is residing separately. In case of oral partition naturally the party alleging partition can only give details of the property and its distribution and when the distribution has not been shown to be absolutely disproportionate then that fact may also be relevant in the facts and circumstances of the case. In case of oral partition naturally the party alleging partition can only give details of the property and its distribution and when the distribution has not been shown to be absolutely disproportionate then that fact may also be relevant in the facts and circumstances of the case. So far as the credibility of the plaintiff himself is concerned, he stated that the agricultural land of Raikoriya was purchased by the father of the plaintiff and defendant Nos. 1 and 2 along with plaintiff. He admitted that he did not pay any amount for the purchase of this land and very specifically denied the suggestion that there is no name of the father of the plaintiff in the registered deed for the above agricultural field. This fact is contrary to the fact mentioned in the registered document filed by the appellant before this Court along with application under Order 41, Rule 27 C. P. C. and the documents were admitted by the plaintiff. In these registered deeds the purchasers are shown as Balu Ram, Prem Ram and Amba Lal only. This land was purchased in the year 1969. At that time, admittedly, father of the above three persons was alive as he died on 10-1-1971. The plaintiff stated that this land was purchased by the plaintiff's father is contrary to the registered sale deed. PW-1 (plaintiff) asserted in his evidence that his father's name is in the registry itself. That shows that he was not aware of even facts with respect to the land of the parties of Raikoria. The plaintiff admitted that he had paid any amount which was the case of the defendants. In addition to above, the plaintiff deliberately did not produce these documents before the trial Court which appears to be because of the reason that he was fully aware that in case the plaintiff will produce these documents, it may go against him with respect to the fact that the property was purchased by the father of the plaintiff and defendant Nos. 1 and 2 and name of father of the plaintiff is in the registered document. 21. The plaintiff produced witness PW-2 Doongar Singh, whose age was 35 years in the year 1979. Naturally, he could not have any knowledge with respect to the events of 1962 when the partition was alleged. 1 and 2 and name of father of the plaintiff is in the registered document. 21. The plaintiff produced witness PW-2 Doongar Singh, whose age was 35 years in the year 1979. Naturally, he could not have any knowledge with respect to the events of 1962 when the partition was alleged. He admitted that the defendant Balu Ram filed one suit against him in which he (PW-2) was the accused. PW-2 has not shown how he is related so as to have knowledge with respect to the family affairs of the plaintiff and defendant Nos. 1 and 2. The evidence of PW-2 nowhere helps the plaintiff and is not sufficient evidence to rebut the evidence of DW-1 and DW-2 with respect to the oral partition. Merely because the entry in the revenue records were not made to record the partition in the revenue record itself cannot be a ground to discard the oral evidence of the defendant Nos. 1 and 2. In the facts of this case, it cannot be ignored that the parties are villagers from a very small village Lavera Kalan of Tehsil Ossian and if after partition they started using and enjoying properties which tell in their share without there being necessary entries in the revenue record, that itself is not sufficient ground to hold that the property was not partitioned between the parties. 22. The trial Court observed that why the two houses and one plot was given to the plaintiff which is more share as compared to the share of the defendants and what was left for the father of the plaintiff and defendant Nos. 1 and 2 are the suspicious circumstances against the partition. The above observations of the learned trial Court ignored the material fact by this admission of the defendants and if the plea of the defendants is accepted then the plaintiff is in benefit as compared to the defendants then instead of putting a question mark on the partition itself, the trial Court should have considered the aspect why the defendants will admit to lose the property by giving major share or more share to the plaintiff. Therefore, when there appears to be reasonableness towards the plaintiff in giving share in the property by the defendant then that fact also is as important fact while determining whether the oral partition took place or not. Therefore, when there appears to be reasonableness towards the plaintiff in giving share in the property by the defendant then that fact also is as important fact while determining whether the oral partition took place or not. So far as the property in the share of deceased Jagannath is concerned, admittedly, he was of the age of 70 years or more and if he did not chose to keep any property for himself, it cannot be a ground for rejecting the plea of oral partition. Therefore, the trial Court committed illegality in deciding issue No. 1 against the appellant-defendant Nos. 1 and 2. From the above evidence of defendant Nos. 1 and 2, the defendant-appellants able to prove oral partition in the year 1962. Hence, finding on issue no. 1 recorded by the trial Court is set aside. 23. Issue not 2 is with respect to the property (S.No. (e)) mentioned in para 2 of the plaint which was alleged by the plaintiff to be ancestral property for which the plaintiff stated that this property was purchased for Rs. 12,000/- but in the plaint, it is nowhere stated that who purchased this land of village Raikoria Tehsil Ossian nor it is stated that the above land was purchased by the father of the plaintiff nor it is stated that it was registered in the name of plaintiff and defendant Nos. 1 and 2 as Benami property of their father Jagannathji. It is also not stated that the fact mentioned in the registered document of purchase of the property in the name of plaintiff, defendant No. 1 and defendant No. 2 is wrong fact. In addition to above, the statement of PW-1 clearly shows that the plaintiff asserted in cross-examination that his father's name is in the registered sale deed. That fact is a wrong fact. The plaintiff did not chose to produce the copy of the registered sale deeds. The defendant-appellants submitted these copies of the registered sale deeds which were admitted by the counsel for respondent No. 1. From these registered documents it is clear that the land was not purchased by deceased Jagannath, father of the plaintiff but it stood in the names of defendants No. 1 and 2 and the plaintiff him self. The defendant-appellants submitted these copies of the registered sale deeds which were admitted by the counsel for respondent No. 1. From these registered documents it is clear that the land was not purchased by deceased Jagannath, father of the plaintiff but it stood in the names of defendants No. 1 and 2 and the plaintiff him self. The defendants took the plea that the plaintiff did not pay anything for purchase of this land, which was admitted by the plaintiff himself specifically in his statement before the trial Court. Therefore, it is clear that the above property, though purchased in the name of defendant Nos. 1 and 2. name of the plaintiff is also there but since the plaintiff admitted that he has not paid any amount, this proves the plea taken by the defendants in their written statement. Therefore, the above property cannot be held to be ancestral property of the plaintiff and the defendants or of late Shri Jagannath and since the plaintiff has not paid any amount towards the purchase of the property shown in sub-para (e) of para 2 of the plaint, it is held that this property is not available for partition and it is held that the plaintiff has no share in this property and the finding of the trial Court on issue No. 2 is set aside which is based only upon the assumption that since no partition took place in the family of the plaintiff and defendants and the property was purchased in the lifetime of the father of the plaintiff and defendant Nos. 1 and 2 and, therefore, it can be treated as property purchased from the ancestral money. 24. Issue No. 3 was decided against the plaintiff by the trial Court which has not been challenged by the plaintiff-respondents. 25. The trial Court while deciding issue No. 4 observed that it can be presumed that the property of one of the brothers can be presumed to be joint family property. Again, the trial Court observed that since Amba Lal admitted that the tractor was purchased in the Samvat Year 2025 and at that time his father was alive and in view of the fact that tractor was purchased in the lifetime of the father of Amba Lai, as per the provisions of Hindu Law, it can be presumed that this property was purchased from the joint Hindu family money. The trial Court held that Amba Lal failed to produce the documents of purchase of the tractor and admitted that the above tractor was sold. The trial Court failed to appreciate that this was a plaintiff who came with a positive case that the tractor and trolley were the ancestral property being the property of Jagannath, therefore, it was for the plaintiff to prove that the property was purchased by deceased Jagannath. When the plaintiff failed to prove this fact then the issue should have been decided against the plaintiff. The reasoning given by the trial Court that when the property was purchased in the lifetime of the father of the plaintiff and defendant Nos. 1 and 2 then it can be presumed to have been purchased out of the money of the joint family is absolutely erroneous in the facts of this case. Therefore, finding on issue No. 4 is set aside and it is held that the plaintiff failed to prove that the tractor and trolley were joint family property of the plaintiff and the defendants. 26. Issue No. 6 was also decided by the trial Court on assumption even by ignoring the positive admission of the plaintiff that the plaintiff was residing in a separate house and the plaintiff invested his money over the house in which he is residing. The plaintiff also admitted that he was ousted from the other house. There appears to be no reason to disbelieve the statement of DW-1 wherein DW-1 specifically stated that he raised the construction over half of the plot which was given to him in partition and Balu Ram constructed on the other half plot. It is not the case of even plaintiff that he constructed any of the construction over the plots which are in possession of the defendant Nos. 1 and 2 nor the plaintiff could prove by evidence that the above construction was raised by the deceased Jagannath. Therefore, there is no reason for the trial Court to record the finding on issue no. 6 as recorded by the trial Court. 27. In view of the reasonings given above, the appeal of the appellant deserves to be allowed and the judgment and decree dated 21-11-1979 deserves to be set aside. The suit of the plaintiff deserves to be dismissed. 28. 6 as recorded by the trial Court. 27. In view of the reasonings given above, the appeal of the appellant deserves to be allowed and the judgment and decree dated 21-11-1979 deserves to be set aside. The suit of the plaintiff deserves to be dismissed. 28. Accordingly the appeal of the appellant is allowed and the judgment and decree passed by the trial Court dated 21-11-1979 is set aside and the suit of the plaintiff is dismissed. In the facts and circumstances of the case, the parties shall,pear tpeir own costs.Appeal allowed. *******