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2004 DIGILAW 390 (JHR)

Prafulla Narain Dwary v. Nil Narain Dwary

2004-04-09

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the defendants appellant has been preferred against the impugned judgment and preliminary decree dated 28.07.2001 and 13.08.2001 respectively passed in title partition suit No. 683 of 1997 by Shri Anirudh Prasad Sharma, 3rd Subordinate Judge, Doeghar whereby and whereunder the said suit was decreed for carving out a separate takhta of half share in favour of the plaintiff-respondent 1st set in the suit property by appointment of a Pleader Commissioner. 2. The plaintiffs (who are respondent 1st set in this appeal) had filed the said suit for metes and bounds partition of the suit property detailed in Schedules I, II and III at the foot of the plaint in which they have claimed half share and further a relief has been sought that any portion of the suit property if found alienated by defendant-appellant Nos. 1 and 2 or their father be allotted to their share. 3. The case of the plaintiffs-respondent 1st get is that Harihar Dutt Dwari is the common ancestor of the parties who are the members of joint Hindu Mitakshara family and he had two sons, namely, Badri Narain Dwari and Kedarnath Dwari. The said Badri Narain Dwari died leaving behind his two sons, namely, Indra Narain Dwari and Brahm Narain Dwari and a daughter Sarojini Devi. Plaintiff-respondent No. 1 Nil Narain Dwari is the son of Indra Narain Dwari aforesaid and plaintiff-respondent No. 2 Rupesh Narain Dwari is the son of said Nil Narain Dwari. Defendant-respondent No. 8 Fekni Devi is the daughter of the said Indra Narain Dwari who had died in the year 1968. Brahm Narain Dwari died on 28.03.1991 leaving behind his two sons Praful Narain Dwari, and Anil Narain Dwari and three daughters, namely Manju. Meera and Durga. The said Praful Narain Dwari has two sons, namely Lalit Narain Dwari and Krishna Nand Dwari @ Pintoo Dwari whereas Anil Narain Dwari has a son Amulya Narain Dwari and they all figure as defendants in the suit besides Fekni Devi aforesaid. Meera and Durga. The said Praful Narain Dwari has two sons, namely Lalit Narain Dwari and Krishna Nand Dwari @ Pintoo Dwari whereas Anil Narain Dwari has a son Amulya Narain Dwari and they all figure as defendants in the suit besides Fekni Devi aforesaid. Kedar Nath Dwari aforesaid filed title partition suit No. 51 of 1957 against said Badri Narain Dwari for partition of the joint family property and during the pendency of the said suit said Badri Narain Dwari has died and Indra Narain Dwari, Brahm Narain Dwari and Sarojini Devi were substituted in his place, and in the said partition suit the joint family property was partitioned in which Kedar Nath Dwari got half and the descendants aforesaid of Badri Narain Dwari jointly got the other half. Said Sarojini Devi died issueless on 13.01.1994. The ancestral properties allotted to Indra Narain Dwari, Brahm Narain Dwari and Sarojini Dwari jointly in the said partition suit of 51 of 1957 described in the schedules of this plaint is the subject matter of partition in this suit. The case of the plaintiff- respondent 1st set further is that Indra Narain Dwari, being the elder full brother of Brahm Narain Dwari, was of unsound mind and as such after the death of Badri Narain Dwari the said Brahm Narain Dwari became the karta of the joint family and started managing the entire suit land and Indra Narain Dwari aforesaid died in the year 1968 in the state of jointness with him leaving behind his son, the plaintiff-respondent No. 1 and a daughter defendant No. 9, Fekni Devi. Brahm Narain Dwari also died in the year 1991 in the state of jointness with the plaintiff-respondent 1st set. The plaintiff-respondent No. 1 Nil Narain Dwari became a lecturer in S.R College Dumka and, thereafter, he was transferred to Deoghar College, Deoghar and in view of the nature of his job it was not possible for him to look after the entire joint family properties and as such the entire joint family property including jajmanika came in the management of defendant-appellant No. 1 Praful Narain Dwari and defendant-appellant No. 2 Anil Narain Dwari. It is alleged that Schedule III properties of the plaint are two residential houses and during the life time of Indra Narain Dwari, the defendant-appellant was residing in the house with his family members described in Schedule III/A of the plaint by way of family arrangement and Indra Narain Dwari was residing with his family in the house described in Schedule III/B of the plaint and said Indra Narain Dwari and Brahm Narain Dwari were residing in two separate house under mutual understanding without any partition by metes and bounds and the plaintiff-respondent 1st set has half share in both the houses and on the death of Sarojini Devi issueless in the year 1994 her share in the suit property devolved upon the parties to the suit. It is alleged that the parties to the suit are in possession of the ancestral property including jajmanika as per their convenience without any metes and bounds partition. The plaintiff-respondent 1st set asked for the metes and bounds partition for the suit properties in the year 1995 which was evaded by the defendant-appellant and finally in the month of May, 1997 they refused for the metes and bounds partition. The plaintiff-respondent 1st set has claimed half share in the entire suit properties. 4. The further case of the plaintiff-respondent is that plaintiff-respondent No. 1 Nil Narain Dwari has purchased a land in his name and in the name of his wife in Mauza Nilkanthpur, Deoghar from one Ranjit Prasad by virtue of the registered sale deed in the year 1989 from the savings of his personal earning as he was working as lecturer of Mathematics and he stands mutated in respect thereof and, thereafter, plaintiff-respondent No. 2 joined service in an American Ship Company in the year 1993 and out of the savings from his earning he purchased 7 kathas of land in Mauza Nilkanthpur, Deoghar in his name from one Sita Kant Jha and Smt. Krishna Jha by virtue of a registered sale deed dated 16.04.1998 and he also stands mutated in respect thereof and the said land is the self acquired properties of the plaintiffs-respondent 1st set and no liable to partition and the said self acquired properties is not the subject matter in this suit. 5. 5. The defendant-appellants in their written statement has made out a case that there had been a family arrangement between the parties in the year 1961 for maintaining peace in the family and as per terms of the family arrangement the house mentioned in Schedule III/A of the plaint was allotted to Brahm Narain Dwari, the father of the appellants and Schedule III/B house was allotted to Indra Narain Dwari, the father of the plaintiff-respondent 1st set and since then the parties to the suit are residing separately in their respective houses and, thereafter, the appellants have also developed Schedule III/A house by making several constructions therein investing huge amount and since then the parties are maintaining their respective houses from the date of the family arrangement. Their further case is that the properties of the parties to the suit have already been partitioned by way of family arrangement aforesaid and as per the said family arrangement they have come in possession and they have also developed the property as per their allotted share and thus the question of re- opening of partition does not arise at all. It is also alleged that Schedule III/B property has commercial value and it is valuable than Schedule III/A property Schedules I and II properties of the plaint are vague and not in existence. It is alleged that the suit property in existence has been described in Schedules I and II of the written statement. It is also alleged that Brahm Narain Dwari was never the karta of the family after the death of Badri Narain Dwari and plaintiff-respondent Nil Narain Dwari was himself managing his properties allotted to him by virtue of the family arrangement. Lastly it has been stated that the suit is bad on account of non-exclusion of the joint family properties purchased in the name of the plaintiff-respondent 1st set from the joint family nucleus of jajmanika and that being so all the properties so purchased in the name of the plaintiff-respondent 1st set are joint family properties, and the suit is liable to be dismissed on account of non-exclusion of these properties in this suit. 6. In view of the pleadings of the parties the following issues have been framed by the Trial Court for adjudication in this case :-- (i) Is the suit maintainable? (ii) Have the plaintiffs cause of action for the suit? 6. In view of the pleadings of the parties the following issues have been framed by the Trial Court for adjudication in this case :-- (i) Is the suit maintainable? (ii) Have the plaintiffs cause of action for the suit? (iii) Is the suit barred by limitation? (iv) Is the suit liable to be dismissed for the non-joinder of necessary parties? (v) Have the plaintiffs any interest in respect of the disputed land, house and the land gifted by jajman? (vi) Was there a partition by metes and bounds between the parties in the year 1961? (vii) Is the property of village Nilkanthpur the self acquired property of the plaintiffs? (viii) Are the plaintiffs entitled for the reliefs as claimed? 7. In view of the oral and documentary evidence on the record while deciding issue Nos. (v), (vi) and (vii) the learned Trial Court had held that there is unity of ownership and possession between the parties over the suit property and the case of previous metes and bounds partition in the year 1961 as set up by the defendant-appellant has not been established and the plaintiff-respondent 1st ,set is entitled to half share in the suit property. The learned Trial Court has further held that the property situate in Mauza Nilkanthpur is the self acquired property of plaintiff-respondent 1st set. While deciding other issues it has been held that the plaintiff-respondent 1st set has. valid cause of action for the suit and it is not barred by limitation and the suit is not bad for want of necessary parties. In view of the finding aforesaid the learned Trial Court has decreed the suit declaring that the plaintiff-respondent 1st set entitled to half share in the suit property which shall be carved out by appointment of the Pleader Commissioner. 8. Being aggrieved by the impugned judgment the defendant-appellant Nos. 1, 2 and 3 have preferred this appeal. 9. Following points arise for adjudication in this appeal. (i) Is the case of metes and bounds partition by family arrangement in the year 1961 as set up by the appellants correct? (ii) Are the Nilkanthpur properties self acquired properties of the plaintiff-respondent 1st set? 10. 1, 2 and 3 have preferred this appeal. 9. Following points arise for adjudication in this appeal. (i) Is the case of metes and bounds partition by family arrangement in the year 1961 as set up by the appellants correct? (ii) Are the Nilkanthpur properties self acquired properties of the plaintiff-respondent 1st set? 10. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not meticulously consider the oral and documentary evidence on the record in proper perspective and has erroneously disbelieved the case of previous partition by metes and bounds by way of family arrangement having taken place in the year 1961 between the parties. Elucidating further it has been submitted that PW 8 in para 7 of his testimony has specifically stated that both the parties to the suit are separate in mess and residence for the last 35 years and the appellants reside in the house situate at Dukhi Sah road (i.e. Schedule III/A house) whereas the respondents 1st set reside with their family members in the house situate in Chakravorty Lane (i.e. Schedule III/B house) and even respondent No. 1 Nil Narain Dwari in para 7 of his evidence has deposed that the usufruct of the suit land is divided half and half between the parties and recently rice has come from village Siladeh which has been equally divided between the parties a week ago and the witnesses examined on behalf of the appellants have stated in their evidence regarding the metes and bounds partition between the parties in the year 1961 by way of family arrangement and since then the appellants are residing in Schedule JII/A house and respondents 1st set; are residing in Schedule III/B house separately and Brahm Narain Dwari, the father of appellant Nos. I and 2 have made several constructions in the house allotted to him in the said metes and bounds partition by family arrangement from their separate income and similarly the respondents 1st set have also made several constructions in the house allotted to him in Chakravorty lane. It has further been submitted that Brahm Narain Dwari was never the karta of the joint family consisting of the parties to the suit and both the parties used to manage their properties separately. In support of his contention Exts. C and C/1, besides Ext. It has further been submitted that Brahm Narain Dwari was never the karta of the joint family consisting of the parties to the suit and both the parties used to manage their properties separately. In support of his contention Exts. C and C/1, besides Ext. 9 have been referred which are the receipts and notice of Deoghar Municipality in the name of Brahm Narain Dwari exclusively in respect of Schedule III/A house whereas Ext. C/2 is the municipal receipt of Deoghar Municipality exclusively in the name of Indra Narain Dwari, the father of the respondent 1st set in respect of Schedule III/B house and furthermore Ext. J and Ext. 12 to 12/b, the certified copies of the demand registers, clearly establish the fact that Schedule III/B houses have been assessed for payment of municipal tax exclusively in the name of the respondent 1st set and the learned Court below has not properly construed these documents and thus the finding of the learned Court below rejecting the case of previous partition by metes and bounds in the year 1961 between the parties is erroneous. It has also been contended that the Nilkanthpur property is the joint family acquisition though in the name of respondent 1st set from the joint family fund. Therefore, the impugned judgment is unsustainable. 11. In contra, it has been submitted by the learned counsel for the respondent 1st set that there is no legal evidence on the record to substantiate the case of the defendant-appellant regarding metes and bounds partition of the suit property in the year 1961 by way of family arrangement rather the parties to the suit are living separately for the sake of convenience only in the house of Dukhi Sah Lane and Chakravorty Lane respectively. Elucidating further it has been submitted that there is no document to evidence the fact of metes and bounds partition of the year 1961 as alleged by the defendant-appellant and the documents brought on the record clearly establish the fact that jamabandi of both the houses aforesaid is still joint and the rent is paid jointly. Elucidating further it has been submitted that there is no document to evidence the fact of metes and bounds partition of the year 1961 as alleged by the defendant-appellant and the documents brought on the record clearly establish the fact that jamabandi of both the houses aforesaid is still joint and the rent is paid jointly. It has also been contended that Indra Narain Dwari, the father of respondent 1st set was of unsound mind and the fact of his lunacy stands admitted by DW 10 and DW 20 in their evidence and in the year 1961 respondent No. 1 Nil Narain Dwari was a minor and in such a situation how can there be a partition by metes and bounds between Brahm Narain Dwari on the one hand and minor respondent Nil Narain Dwari in the year 1961. It has further been contended that there are overwhelming documents on the record which show that jamabandi of the suit property was joint in the name of Indra Narain Dwari and Brahm Narain Dwari, the respective ancestors of the parties to the suit and these documents clearly belie the case of metes and bounds partition as set up by the appellants. It has further been contended that there is no vagueness in respect of the suit property in view of the fact that the suit properties of this case is the property which was jointly allotted to the parties to the suit by virtue of the decree passed in title partition suit No. 51 of 1957. It has further been contended that respondent Nil Narain Dwari was employed as a lecturer in the year 1965 and he worked as such in different colleges and there are documents on the record to evidence the said fact and from the savings of his earning as Professor he has acquired the Nilkanthpur property in the year 1989 by virtue of a registered sale deed executed by Ranjit Prasad and he stands mutated over the same and he has paid the consideration of the said sale deed by withdrawing a sum of Rs. 31.279/- from his provident fund account and Ext. 24, 24/A and 24/E and Exts. 25 and 25/A corroborate the aforesaid fact. 31.279/- from his provident fund account and Ext. 24, 24/A and 24/E and Exts. 25 and 25/A corroborate the aforesaid fact. It has also been contended that plaintiff- respondent Rupesh Narain Dwari also got the job in the year 1993 in an American Ship Company and from the savings of his earning he has acquired seven kathas of land in Nilkanthpur by virtue of a registered sale deed dated 16.04.1998 and he has paid the consideration from his savings of his earning and he also stands mutated in respect thereof and Ext. 24/C, Ext. 24/D, Ext. 24/E and Ext. 25/B corroborate the same and in this view of the matter in cannot be said that Nilkanthpur property has been acquired from the nucleus of the joint family fund and in this view of the matter the Nilkanthpur property is the self acquired property of the respondent 1st set and the learned Trial Court on the basis of the evidence on the record has rightly held that the Nilkanthpur property is the self acquired property of the respondent 1st set and it is not a joint family property. Lastly it has been contended that the learned Trial Court has on proper appreciation of the evidence oral and documentary on the record has come to the finding that there is unity of ownership and possession between the parties in respect of the joint family property and the case of previous partition as set up by the appellants is false and thus there is no illegality in the finding of the learned Trial Court requiring an interference therein. In support of his contention reliance has been placed upon the ratio of the cases of Dinanath Yadav and Ors. v. Smt. Kusum Devi and Ors., 2000 (2) PLJR 522 . Barhu Ram and Ors. v. Butai Ram and Anr., (1999) 3 BLJR 13 and Kondiram Bhiku Kirdat v. Krishna Bhiku Kirdat, through L.Rs., (1995) 1 BLJR 59. 12. Let us now advert to the case of the previous partition by metes and bounds in the year 1961 by way of family arrangement as set up by the appellants. Barhu Ram and Ors. v. Butai Ram and Anr., (1999) 3 BLJR 13 and Kondiram Bhiku Kirdat v. Krishna Bhiku Kirdat, through L.Rs., (1995) 1 BLJR 59. 12. Let us now advert to the case of the previous partition by metes and bounds in the year 1961 by way of family arrangement as set up by the appellants. Before discussing the evidence oral and documentary on the record in respect thereof it is pertinent to mention here the following admitted facts :--One Harihar Dutt Dwari was the common ancestor of the parties and he died leaving behind his two sons, namely, Badri Narain Dwari, the common ancestor of the parties to the suit and Kedarnath Dwari. There had been a suit for partition between them vide title partition suit No. 51 of 1957 and the joint family properties left by Harihar Dutt Dwari was partitioned between them as per the decree of the Court carving out their separate takhata to the extent of half and half. Ext. 5 and Ext. 6 are the plaint and written statement of the said partition suit No. 51 of 1957 and Ext. 7 is the judgment dated 22.12.1958 of Sub-ordinate Judge, Deoghar passed in the said suit. Ext. 4 is the written statement filed by GAL on behalf of Indra Narain Dwari in the said suit as he was of unsound mind. During the pendency of the said suit, said Badri Narain Dwari had died on 10.6.1958 (Ext. 9/b) leaving behind his two sons, namely, Indra Narain Dwari and Brahm Narain Dwari and a daughter Sarojini Devi and they were substituted as defendant in the said partition suit. Said Sarojini Devi has died issueless in the year 1994. Plaintiff-respondent No. 1 Nil Narain Dwari and defendant No. 9 Fekni Devi are the son and daughter respectively of Indra Narain Dwari, who has died on 9.12.1968 (Ext. 9). The said Indra Narain Dwari was of unsound mind and this fact stands admitted by DW 10 in para-8 and DW 20 para-13 of their testimony and it further stands corroborated by Ext. 4 referred to above. Plaintiff-respondent No. 2 Rupesh Narain Dwari is the son of Nil Narain Dwari aforesaid. Said Brahm Narain Dwari had died on 31.3.1991 (Ext. The said Indra Narain Dwari was of unsound mind and this fact stands admitted by DW 10 in para-8 and DW 20 para-13 of their testimony and it further stands corroborated by Ext. 4 referred to above. Plaintiff-respondent No. 2 Rupesh Narain Dwari is the son of Nil Narain Dwari aforesaid. Said Brahm Narain Dwari had died on 31.3.1991 (Ext. 9/a) leaving behind his sons, defendant-appellant No. 1 Praful Narain Dwari and defendant-appellant No. 2 Anil Narain Dwari, besides three daughters, namely, Manju, Meera and Durga, who figure as defendant-respondent Nos. 5, 6 and 7 respectively. Appellant No. 3 Amulya Narain Dwari is the son of said Anil Narain Dwari whereas defendant-respondent Nos. 3 and 4 Lalit Narain Dwari and Krishna Nand Dwari @ Pintoo Dwari are the sons of defendant-appellant No. 1 Praful Narain Dwari. There is no dispute regarding the genealogy of the parties as well as the year of death of Indra Narain Dwari, Sarojini Devi and Brahm Narain Dwari. It is equally relevant to mention here that the suit property detailed in Schedules I, II and III of the plaint does not suffer from any vagueness in view of the fact that those properties were admittedly allotted jointly to the parties of the present suit by virtue of the metes and bounds partition vide title partition suit No. 51 of 1957. Schedules I, II and III properties of the plaint of the suit in hand were admittedly joint family properties of the parties to the suit and DW 20, Praful Narain Dwari, the defendant-appellant No. 1 in para-15 of his evidence has admitted that the suit properties are the properties which have been jointly allotted to the parties to the suit in previous partition suit and the plaintiff-respondent 1st set has sought for metes and bounds partition of those properties in the suit at hand. 13. The case of the plaintiff-respondent 1st set is that the parties to the suit are joint and Brahm Narain Dwari became the karta of the family in view of the fact that his elder brother Indra Narain Dwari was of unsound mind and entire suit property remained under his management and Indra Narain Dwari aforesaid has died in the year 1968 in the state of jointness. The further case of the plaintiff-respondent 1st set is that Schedule III properties of the plaint are two residential houses and during the life time of Indra Narain Dwari, the defendant- appellant was residing in the house with his family members described in Schedule III/A of the plaint and Indra Narain Dwari was residing with his family members in the house described in Schedule III/B house of the plaint by way of family arrangement under mutual understanding without any partition by metes and bounds and the plaintiff-respondent 1st set have half share in both the houses aforesaid. Their further case is that the parties to the suit are in possession of the Schedule I and Schedule II property including jajmanika as per their convenience without any metes and bounds partition. The case of the defendant-appellant, on the other hand, is that there had been a family arrangement between the parties in the year 1961 for maintaining peace in the family and as per terms of the family arrangement the house detailed in Schedule III/A of the plaint was allotted to Brahm Narain Dwari, the father of the appellants and Schedule III/B house was allotted to Indra Narain Dwari, the father of plaintiff-respondent 1st set and since then the parties to the suit are residing separately in their respective houses and there had been a partition of the suit properties by way of the said family arrangement. Their further case is that thereafter Brahm Narain Dwari had made several constructions in Schedule III/A house allotted to him by virtue of the said partition by way of family arrangement. Their further case is that Brahm Narain Dwari was never the karta of the family after the death of Badri Narain Dwari and plaintiff-respondent No. 1 Nil Narain Dwari was himself managing the properties allotted to him by virtue of the family arrangement. Admittedly, the suit properties detailed in Schedules I, II and III of the plaint have been allotted jointly to the parties to the suit by virtue of the decree of title partition suit No. 51 of 1957 and Indra Narain Dwari and Brahm Narain Dwari along with their respective descendants were the members of the joint Hindu Mitakshara family being the coparceners. Generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. Generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. In other words, given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint. The presumption of union is the greatest in the case of father and sons. The presumption is stronger in the case of brothers than in the case of cousins, and the father one goes to the founder of the family the presumption becomes weaker and weaker. The reason is that brothers are for the most part undivided; second cousins are generally separated and third cousins are for the most part separated. If a joint family possessed property which was admittedly joint, the presumption would be that the property continues to be joint and the burden would lie upon the member who claims it as his separate property to prove that there was a partition and that he got it on such partition. A joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughter but Hindu coparcenary is a much, narrow body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property and they are sons, grant sons and great grand sons of the holder of the joint family for the time being, in other words, the three generation next to the holder in broken male descent. The essence of a coparcenary under the Hindu Mitakshara law is unity of ownership and possession. The ownership of the coparcenary property is for the whole body of coparcenery and according to true notion of an undivided family governed by Hindu Mitakshara law no individual member of the family whilst it remains undivided, can predicate of the joint and undivided property that a particular member has a definite share and it is only on a partition that a member of the joint family becomes entitled to a definite share. The Apex Court has observed in the case of State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330 , which runs thus :-- "That according to the Mitakshara School of Hindu Law, all the property of a Hindu Joint family is held in collective ownership by all the coparceners in quasi corporate capacity. The incidents of coparcenary are : first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it is for necessity without the concurrence of the coparceners and sixthly, that the interest of a deceased member passes on his death to the surviving coparceners." Here it is relevant, to mention that coparcenary property is liable to be partitioned and every coparceners is entitle to a share on partition. Partition is a severance of joint status and as such it is a matter of individual volition. To constitute partition all that is necessary is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally and the said definite and unequivocal indication of his intention should be to the knowledge of the person affected and once a member of the joint family has clearly and unequivocally intimated to the other members of his desire to severe himself from the joint family his right to obtain and possess his share is unimpeachable whether or not the other members of the joint family agree to a separation and there is an immediate severance of the joint status Article 260 of the Mulla Hindu Law (16th edition) mandates that no coparcener can alienate even for value his undivided interest without the consent of the other coparceners. It is crystal clear from the pleadings of the parties referred to above that there was a family arrangement inter se between the parties and as per the family arrangement, the defendants-appellant were residing in Schedule III/A house situate in Dukhi Sah Lane whereas the plaintiff-respondent 1st set was residing in Schedule III/B house situate in Chakravorty Lane but according to plaintiff- respondent there was no metes and bounds partition between the parties. According to the case of the defendants-appellant there was metes and bounds partition between the parties by way of the said family arrangement in which Schedule III/A house situate in Dukhi Sah Lane was allotted to their specific share in the year 1961. The Schedule III/A house in occupation of the defendants-appellant situate at Dukhi Sah Lane has an area of 1-3/4 kattha or 2 kattha and it is about 2800 to 3000 square feet. For this, the evidence of DW 20 appearing in para-17 of his evidence is referred to. However, this witness has feigned his ignorance regarding the area of the house situate in Chakravorty Lane being 1400 square feet. He as also deposed that Chakravorty Lane is a residential area. DW 10 in para-5 has deposed that the house situate in Dukhi Sah Lane is a big house in comparison to the house situate at Chakravorty Lane. DW 17 has deposed that the area of the house in Chakravorty Lane is 50 or 55 x 30. It is, therefore, established from the evidence referred to above that the Schedule III/A house is bigger in size and dimension having larger area in comparison to the Schedule III/B house situate in Chakravorty Lane Schedule III/A house is also a double storied house. DW 10 has deposed that the house situate at Dukhi Sah Lane has commercial value in view of the fact that there is a market in the close vicinity of the said house. DW 10 has deposed that the house situate at Dukhi Sah Lane has commercial value in view of the fact that there is a market in the close vicinity of the said house. DW 20 Praful Narain Dwari, who is the defendant-appellant No. 1 has deposed in para-1 of his evidence that there had been a metes and bounds partition in the year 1961 between the parties by way of family arrangement and the Schedule III/A house was allotted to the share of his father and Schedule III/B house situate in Chakravorty Lane has been allotted to the share of the father of the plaintiff-respondent 1st set and since then both the parties are living separately in their respective houses allotted to them as per the said partition DW 20 has not whispered in his evidence as to why there had been a metes and bounds partition by way of family arrangement in the year 1961 whereas in the plaint it has been stated that the reason for the said partition was for maintaining peace in the family. In para-16 of his cross-examination he has deposed that there was amicable relationship between the parties prior to the institution of this suit and even today there is cordial relationship between them. Therefore, it cannot be inferred that there was any compelling reason in the year 1961 for any metes and bounds partition between the parties by way of family arrangement. Admittedly, Indra Narain Dwari, the father of respondent 1st set was of unsound mind and there is evidence on the record to establish the said fact and therefore, Brahm Narain Dwari being the senior member of the family was the karta of the family. The witnesses examined on behalf of the defendants-appellant have stated that Brahm Narain Dwari was not the karta of the family and he was not doing jajmanika work. The evidence aforesaid of the witnesses of the defendant lacks credence in view of the evidence of DW 20, the defendant-appellant No. 1 appearing in para-16 of his evidence in which he has deposed that his father Brahm Narain Dwari used to do jajmanika work till 1968 when Indra Narain Dwari has died. He has further deposed that Brahm Narain Dwari used to visit the temple of the Lord Baidhyanath to attend special jajmans for their worship of Lord Baidhyanath. He has further deposed that Brahm Narain Dwari used to visit the temple of the Lord Baidhyanath to attend special jajmans for their worship of Lord Baidhyanath. PW 14 has deposed in para-3 of his evidence that Brahm Narain Dwari was the karta of the family till his death and he used to keep all the documents and jajmanika bahi with him. PW 3 is the common agnatic relative of the parties to the suit and he has deposed that Brahm Narain Dwari was the karta of the joint family because of the fact that Indra Narain Dwari was of unsound mind. Similar is the evidence of PW 4, PW 6 and PW 8. PW 14 has further deposed that he was a student of B.Sc. in the year 1961 of S.P. College, Dumka and he used to reside at Dumka and he has graduated in the year 1962. Ext. 15 corroborates this fact. Evidence of DW 20 appearing in para-10 of his testimony also corroborates the fact that PW 14 was reading at S.P. College, Dumka residing with Himansu Babu. Advocate there who also used to provide him with food and after graduation he had sifted to Patna for further study in M.Sc. and has passed his M.Sc. examination in 1964. PW 14 Nil Narain Dwari has deposed that he joined as Lecturer in January 1965 in Deoghar College where he worked till March 1965 and thereafter he joined Bhagalpur University in its post Graduate Department where he worked from August 1965 to May 1966 and thereafter he worked again in Deoghar College from August 1966 to May 1967 and from November 1967 to May 1968 and from September 1968 to July 1971 he worked in S.P. College, Dumka. He has further deposed that he is working in Deoghar College since July 1971. It, therefore, appears from the evidence aforesaid that Brahra Narain Dwari was the only senior member in the family on the eve of the death of his father Badri Narain Dwari to become the karta of the joint family of the parties to the suit in view of the fact that his elder brother Indra Narain Dwari was of unsound mind. I have, therefore, no hesitation to come to the finding in view of the evidence on the record that Brahm Narain Dwari was the karta of the family of the parties to the suit till he was alive and after him the defendant-appellant No. 1 became the karta of the family. 14. DW 20 in para-14 of his cross-examination, has deposed that he cannot tell about the date of the said metes and bounds partition by way of family arrangement. He has further deposed that there was never any acrimonious situation or relation between the parties prior to the said metes and bounds partition. His evidence is further to the effect that the said metes and bounds partition by way of family arrangement was never done through panchayati. Lastly, he has deposed that the said metes and bounds partition was not effected after ascertaining the valuation of both the houses. Therefore, the evidence of DW 20 appearing in para-14 of his testimony does not establish the factum of metes and bounds partition in the year 1961 by way of family arrangement between the parties. DW 10 in para-7 has deposed in the most clear and unequivocal terms that the parties to the suit are living separately in Schedule 1II/B and Schedule III/A houses as per their convenience. The admission of DW 10 referred to above demolishes the case of the defendants-appellant regarding metes and bounds partition by way of family arrangement in the year 1961 as set up by them. It is equally relevant to mention, here that the defendants-appellant have not made out a case that Schedules I and II property of the plaint was also partitioned by metes and bounds by way of family arrangement. The averment made in the written statement of the defendants-appellant is conspicuously silent in respect thereof. DW 20 in his evidence on oath has also not whispered in respect of metes and bounds partition of Schedules I and II property of the plaint. DW 6, DW 8, DW 10, DW 14 and DW 17 besides PW 3, PW 6, PW 8 and also PW 14 have deposed about the separate residence of the parties to the suit in the aforesaid two houses for the last 35 years. DW 6, DW 8, DW 10, DW 14 and DW 17 besides PW 3, PW 6, PW 8 and also PW 14 have deposed about the separate residence of the parties to the suit in the aforesaid two houses for the last 35 years. The separate residence of the parties in separate houses does not lead to the inference that there had been a metes and bounds partition between the parties. Furthermore, there is no document on the record to evidence the fact that there was a metes and bounds partition by way of family arrangement between the parties in the year 1961 to substantiate the case of the defendants- appellant as set up by them. Even jamabandi of both the houses is joint. Ext. 1 series and Ext. B series which are the Municipal tax receipts are equally relevant in respect of the controversy between the parties to the suit. Exts. 1, 1/A and 1/B are of the years 1976-77, 1978 and 1979 respectively. Exts. B to Ext. B/6 are of the years 1969, 1970, 1971 and 1972 respectively. Ext. B/7 is of the years 1969-70 Exts. B/11 to B/12 are of the years 1967 and 1968. Exts. B/8 to B/10 are of the years 1969-68. Exts. B/15 to Ext. 21 are of the years 1979. 1974 and 1975 respectively. Ext 2 is the rent receipt of the years 1998-1999 i.e. during the pendency of the suit and all these municipal tax receipts stand jointly in the name of the parties to the suit. It, therefore, appears that jamabandi continued jointly in respect of the two houses in the name of the parties to the suit. The existence of joint jamabandi between the parties are the documents of unimpeachable character which negates the fact of metes and bounds partition of the aforesaid two houses between the parties by way of family arrangement in the year 1961 as set up by the defendants-appellant in view of the fact that all these Municipal tax receipts are after the year 1961. Ext. 10 is the notice of the Mutation case No. 149 of 1976 jointly in the name of Brahm Narain Dwari and Nil Narain Dwari and Exts. 10/A 10/B are its certified copies. Ext. Ext. 10 is the notice of the Mutation case No. 149 of 1976 jointly in the name of Brahm Narain Dwari and Nil Narain Dwari and Exts. 10/A 10/B are its certified copies. Ext. 11 is the order-sheet of the said Mutation case and it shows that vide order dated 30.12.1976 Brahm Narain Dwari along with defendant-respondent No. 1 Nil Narain Dwari were ordered to be mutated in respect of the suit houses on the basis of the decree passed in title partition suit No. 51 of 1957. Exts. 12/D and 12/E are the certified copies of the demand register in respect of holding Nos. 84 and 199 respectively of the year 1971-72 and both the holdings stand jointly recorded in the name of Indra Narain Dwari and Brahm Narain Dwari. Exts. 12/F and 12/G are the certified copies of Assessment Register of old holding Nos. 140 and 105 respectively of the year 1998-99 which stand jointly recorded in the name of Brahm Narain Dwari and Nil Narain Dwari. Exts. 16, 17, 18 and 3/c are the documents of Mutation Case No. 149 of 1976-77 and these documents evidence the fact that Brahm Narain Dwari and Nil Narain Dwari were mutated jointly in respect of Schedule III house. However, Exts. C and C/l are the miscellaneous receipts of Deoghar Municipality dated 30.12.1972 and 16.11.1972 respectively which stand exclusively in the name of Brahm Narain Dwari, the father of defendant-appellant No. 1. Ext. C/2 is the miscellaneous receipt of Deoghar Municipality dated 22.6.1976 is exclusively in the name of Nil Narain Dwari, the plaintiff- respondent No. 1. Those miscellaneous receipts (Ext. C series) are not the Municipal tax receipts. Ext. C is the receipt of the payment of Rs. 25/- in connection with water connection in the house situate at Dukhi Sah Lane paid by Brahm Narain Dwari. Ext. C/1 is the receipt in respect of Rs. 29.50, which is in respect of inspection fee and charges of road cutting, and this amount has been paid by Brahm Narain Dwari. Ext. C/2 is the receipt of payment of Rs. 12/- by Nil Narain Dwari as mutation fee along with late fine in respect of case No. 20 of 1976. Therefore, Ext. C series cannot be construed as an evidence establishing the fact of metes and bounds partition of 1961 as alleged by the defendants-appellant. Ext. Ext. C/2 is the receipt of payment of Rs. 12/- by Nil Narain Dwari as mutation fee along with late fine in respect of case No. 20 of 1976. Therefore, Ext. C series cannot be construed as an evidence establishing the fact of metes and bounds partition of 1961 as alleged by the defendants-appellant. Ext. A is the petition filed by Nil Narain Dwari on 12.10.1976 before Circle Officer, Deoghar in Mutation Case No. 149 of 1976-77 intimating the Court regarding his presence with relevant documents. Ext. J is the certified copy of the demand register of the year 1975-76 in respect of holding No. 116, which stands recorded in the name of only plaintiffs- respondent. Similarly Exts. 12/A and 12/B are the certified copies of the assessment register of old holding No. 84, new holding No. 96, old holding No. 116 and new holding No. 126 respectively of the years 1978-79 which stand only in the name of the plaintiffs-respondent. Ext. 12 is the certified copy of the demand register of old holding No. 96, new holding No. 105 of the year 1988-89 which stand only in the name of plaintiffs-respondent. Exts. C, C/l, J and read with Exts. 12 to 12/B do not lead at all to the inference that there had been a metes and bounds partition between the parties in the year 1961 whereas on the contrary, I have already referred to above a large number of Municipal receipts i.e. Ext. A series and Ext. B series besides Exts. 12/D to 12/G which show that the jamabandi was joint between the parties in respect of both the houses. The learned Court below in para-7 of the impugned judgment has properly evaluated all the Municipal tax receipts and -all other aforesaid documents in proper perspective and has come to the finding that the defendants-appellant have failed to establish their case of metes and bounds partition by way of family arrangement in the year 1961. In view of the oral and documentary evidence on the record discussed above. I see no reason to disagree with the finding of the learned Court below in respect thereof. Therefore, there is unity of ownership and possession between the parties in respect, of entire suit property including Schedules III/A and III/B houses aforesaid. 15. In view of the oral and documentary evidence on the record discussed above. I see no reason to disagree with the finding of the learned Court below in respect thereof. Therefore, there is unity of ownership and possession between the parties in respect, of entire suit property including Schedules III/A and III/B houses aforesaid. 15. I have held above that Brahm Narain Dwari was the karta of the joint family till he was alive. It also appears from the evidence on the record that after the death of Brahm Narain Dwari, defendant-appellant No. 1 managed the entire suit properties in view of the fact that plaintiff-respondent Nil Narain Dwari and his son Rupesh Narain Dwari were in service. The defendant-appellant has also made out a case that Brahm Narain Dwari has made several constructions in Schedule III/A house after investing huge amount out of his self-income. DW 20 in para-3 of his evidence has deposed that several constructions were made in Schedule III/A house during the period between 1969- 74, by his father Brahm Narain Dwari and the entire cost has been met by his father and he has also contributed in respect of the said construction. In para-9 of his evidence he has denied the fact that his father has made the construction in Schedule III/A house from the income of jajmanika. In his evidence he has deposed that his father has no interest in jajmanika work. I have already stated above that this evidence of DW 20 is false in view of the evidence appearing in para-16 of his testimony. It, therefore, appears that his father has only source of income from doing jajmanika work in view of the fact that DW 20 has not disclosed in his evidence regarding any specific income of his father from doing private tuition. Furthermore, the fact of contribution by this witness in construction of Schedule III/A house is also palpably false as he has joined in service in the month of September, 1975 whereas as per his evidence the alleged construction has been made in Schedule III/A house between 1969 to 1974. DW 6 has deposed that Brahm Narain Dwari has made several constructions in Schedule III/A house. DW 6 has deposed that Brahm Narain Dwari has made several constructions in Schedule III/A house. DW 8 has deposed that construction has been made in the house at Dukhi Sah Lane by Brahm Narain Dwari and he had seen him getting him construction done therein and also defendant-appellant No. 1 Praful Narain Dwari making payment to the labourers and also purchasing materials for the said construction. Similar is the evidence of DW 10 in para-5 and DW 14 in para-1 of their testimony. DW 6 has further deposed that he used to go to Brahm Narain Dwari for tuition in the year 1961-62. In para-4 of his cross-examination he has deposed that Brahm Narain Dwari was not a teacher and he was not in Government service. This witness has not deposed that as to how much amount he was paying to him as tuition fee and also the period for which he was taught by him. DW 8 has also deposed that Brahm Narain Dwari used to do tuition work. In the concluding portion of his cross- examination he has deposed that he had heard that Brahm Narain Dwari was a matriculate. He has also deposed that he was not in service. His evidence is further to the effect that he cannot say that upto which year he has done tuition work and the name of the students whom he has taught. This witness has also not disclosed the income which Brahm Narain Dwari has fetched by doing tuition work. DW 10 in para-7 of his cross-examination has deposed that Brahm Narain Dwari used to do tuition work in the town of Deoghar but he cannot say that who are his students who used to go to the house of Brahm Narain Dwari for tuition and he also cannot say whether he used to visit the house of others for tuition work. His evidence is further to the effect that Brahm Narain Dwari was not a teacher either in a Government school or in a private school. He also does not whisper in his evidence regarding the income of Brahm Narain Dwari by doing tuition work. DW 13 has deposed, that he used to go to the house of Brahm Narain Dwari for tuition from 1979 to 1982 and he used to pay Rs. 15/- per month as tuition fee. He also does not whisper in his evidence regarding the income of Brahm Narain Dwari by doing tuition work. DW 13 has deposed, that he used to go to the house of Brahm Narain Dwari for tuition from 1979 to 1982 and he used to pay Rs. 15/- per month as tuition fee. He has also deposed that Dhruv Shankar Dwari and Rudhra Nand Jha also used to go there for tuition. However, in the next breath he has said that he has simply seen him doing tuition work. Therefore, the evidence of this witness that he was taught by Brahm Narain Dwari lacks credence. The evidence of DW 14 that Brahm Narain Dwari used to do tuition work is unworthy of credit in view of the fact that he came in contact with the family of the parties since 1985 after the marriage of cousin sister of his wife with appellant Anil Narain Dwari. From the evidence aforesaid, it is crystal clear that there is no legal evidence on the record to show regarding any specific income of Brahm Narain Dwari from tuition work. PW 14 has deposed in para-6 of his evidence that whatever construction has been made in Schedule III A house has been done from the income of the joint family property. Ext. F series and Ext. G are the account regarding the expenditure of the alleged construction in question. Ext. E is the receipt dated 3.12.1969 of purchase of five bags of cement for Rs. 42.80 in favour of Brahm Narain Dwari. Ext. F series and Ext. G do not contain the signature of the maker of the said account. This account is in an exercise book. The learned Court below has disbelieved Ext. F series, Ext. G and Ext. E as authentic documents to establish the fact that Brahm Narain Dwari has made construction from his self-income. The learned Court below has assigned cogent reasons for disbelieving the aforesaid documents. I see no reason to disagree with the finding of the learned Court below in respect thereof. It, therefore, appears from the evidence on the record that the construction in Schedule III/A house has been made from the joint family income. The learned Court below has assigned cogent reasons for disbelieving the aforesaid documents. I see no reason to disagree with the finding of the learned Court below in respect thereof. It, therefore, appears from the evidence on the record that the construction in Schedule III/A house has been made from the joint family income. The ratio of the case of Dinanath Yadav and others (supra) relied upon by the respondent 1st set supports their case that the separate residence does not establish the fact of metes and bounds partition between the parties of joint family property. There is also an important aspect regarding the matter in controversy. Admittedly. Indra Narain Dwari was of unsound mind and Nil Narain Dwari was a lad of 20 years old prosecuting his studies at Dumka in the year 1961. Ext. 14, the matriculation certificate discloses that the date of birth of Nil Narain Dwari is 5.1.1941. There is no other male member in the family of plaintiffs-respondent 1st set in the year 1961 to look after them and in this view of the matter the question of metes and bounds partition in the year 1961 as set up, the appellants does not hold good. To sum up, both the houses described in Schedules III/A and III/B of the plaint are the joint family properties of the parties to the suit and there is unity of ownership and possession between the parties in respect thereof and there is no legal evidence on the record to establish the case of previous partition by way of family arrangement in the year 1961 between the parties. Therefore, point No. (i) is hereby decided in favour of plaintiff-respondent 1st set and against the defendants-appellant, 16. Let us now advert to point No. (ii) 4080 square feet i.e. about 3 katthas of land out of plot No. 106 situate in ward No. 1 of Deoghar Municipality stands acquired, in favour of plaintiffs-respondent No. 1 Nil Narain Dwari and his wife Basanti Dwari by virtue of sale deed dated 21.2.1989 (Ext. 27) executed by Ranjit Prasad for Rs. 30,000/- and the said acquired land is situated in Mauza- Nilkanthpur @ Nurpur. Further, 7 kattha of land of plot No. 106 situate in Village-Nilkanthpur @ Nurpur; Bilasi town also stands acquired in the name of plaintiff- respondent No. 2 Rupesh Narain Dwari by virtue of the sale deed dated 16.4.1998 (Ext. 27) executed by Ranjit Prasad for Rs. 30,000/- and the said acquired land is situated in Mauza- Nilkanthpur @ Nurpur. Further, 7 kattha of land of plot No. 106 situate in Village-Nilkanthpur @ Nurpur; Bilasi town also stands acquired in the name of plaintiff- respondent No. 2 Rupesh Narain Dwari by virtue of the sale deed dated 16.4.1998 (Ext. 23) executed by Sitakant Jha and Smt. Krishna Jha for Rs. 1,60,000/-. The case of the defendants-appellant in the alternative is that the suit is bad on account of non-inclusion of the joint family property purchased in the name of plaintiffs- respondent from joint family fund of jajmanika and that being so, all such properties so purchased in the name of the plaintiffs-respondent are the joint family properties and the suit is liable to be dismissed on account of non- inclusion of such joint property. The case of the plaintiffs-respondent, on the other hand, is that plaintiff-respondent No. 1 Nil Narain Dwari joined as Lecturer in the department of Mathematics in S.P. College, Dumka and out his savings from his personal earnings he had purchased about 3 kattha of land situate in Mauza-Nilkanthpur, Deoghar by virtue of the sale deed dated 21.2.1989 executed by Ranjit Prasad in his name along with his wife and they stand mutated in respect thereof vide mutation case No. 541 of 1991-92 and he is paying rent in respect thereof. Their further case is that plaintiff-respondent No. 2 Rupesh Narain Dwari joined service in the American Shipping Company in the year 1993 and out of his savings from his earnings he has purchased 7 kattha of land in Village-Nilkanthpur, Deoghar by virtue of sale deed dated 16.4.1998 executed by Sitakant Jha and Smt. Krishna Jha and he also stands mutated in respect thereof vide mutation case No. 258 of 1989-90 vide order dated 29.12.1998 and he is paying rent. Their further case is that both the properties aforesaid situate in Mauza-Nilkanthpur are their self acquired and separate properties and these properties are not the subject matter of the suit. Their further case is that both the properties aforesaid situate in Mauza-Nilkanthpur are their self acquired and separate properties and these properties are not the subject matter of the suit. Article 233 of the Principles of Hindu Law by Mulla (16th edition) at page 260 is relevant which runs thus :-- "..............where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired." It is also stated therein :-- ".......Where, however, the existence of the nucleus is shown and no other source of income is disclosed, the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in any such case to show that it was acquired by him in circumstances which would constitute it his separate property." There is no denying the fact that joint family of the parties was possessed of joint family property and jajmanika and Brahm Narain Dwari was the karta of the joint family so long he was alive and thereafter defendant-appellant No. 1 Praful Narain Dwari managed the joint family properties but there is total lack of evidence on the record brought by the defendants-appellant regarding the income from the joint family property to have the nucleus for the said acquisition. There is no evidence on the record to show that there was adequate nucleus for the joint family of the parties out of which Nilkanthpur property could have been purchased. There is no evidence on the record to show that there was adequate nucleus for the joint family of the parties out of which Nilkanthpur property could have been purchased. There is also total absence of any legal evidence on the record that the joint family of which Brahm Narain Dwari was the karta has surplus income forming nucleus from which Nilkanthpur property has been purchased. Here in this case even the joint family of the parties had joint family properties but it cannot be said that the said joint family had nucleus sufficient to enable the Nilkanthpur property to be acquired. DW 20 Praful Narain Dwari, the defendant-appellant No. 1 has deposed in para-20 of his testimony that Nilkanthpur property has been purchased in the name of the plaintiffs-respondent from the income of jajmanika and the plaintiffs-respondent also used to do jajmanika work. He has further deposed that the said acquisition is not self-acquired property of the plaintiffs-respondent out of their own earning. In paras-21 and 22 of his evidence he has deposed that plaintiff- respondent Nil Narain Dwari is a Professor since 1965 and his salary is not Rs. 14,000-15,000/- per month. He has also deposed that he cannot say the monthly salary of Nil Narain Dwari. He has also deposed that Rupesh Narain Dwari was appointed as Trainee in the American Shipping Company in the year 1993 and after completing training he stands appointed in the said Shipping Company but he cannot say that the monthly salary of Rupesh Narain Dwari is Rs. 90,000/- per month. He has also deposed that he does not know the monthly salary of Rupesh Narain Dwari aforesaid. However, this witness has admitted that the college provides loan for house construction etc. In para-23 of his cross-examination he has deposed that there is no joint account in any bank regarding the income from jajmanika. In para-24 of his evidence he has deposed that he has no documentary evidence to establish the fact that Nilkanthpur property has been acquired from the joint family fund PW 14 Nil Narain Dwari, the plaintiff-respondent has deposed in para-17 and para-25 of his testimony that he has purchased 4080 square feet of land from the savings of his salary in the lifetime of Brahm Narain Dwari. He has also deposed that he is an income tax payee and he has shown the acquisition in his income tax return. He has further deposed that he has working as Lecturer since 1965 and he has made the acquisition aforesaid on 21.2.1989 from Ranjit Prasad by virtue of the sale deed executed by him and he has taken advance of Rs. 31,279/- from his provident fund on 19.3.1988 for purchase of the said land and he had deposited the said amount in his bank account and the said bank account is his joint account with his wife and Exts. 25 and 25A support the said fact. He has further deposed that he has paid the consideration amount to Ranjit Prasad aforesaid after withdrawing the same from his account. Ext. 24A is the certificate of the Manager of the Bank which evidences the fact that the said amount has been withdrawn from his provident fund account and it stands deposited in his joint A/C. He has further deposed that his son Rupesh Narain Dwari works in the American Shipping Company since 1993 and he has purchased 7 kattha of land from Sitakant Jha and Smt. Krishna Jha for Rs. 1,60,000/- and he has paid Rs. 50,000/-out of the consideration amount through cheque from his SBI Account No. 44/484-6 and he has further paid Rs. 1,10,000/- by demand draft dated 15.4.1998 withdrawing the said amount from his NRE Account No. 2 and the said fact stands certified by the Bank Manager. He has further deposed that thereafter some construction has also been made in the aforesaid acquired land. In para-29 of his evidence he has deposed that the aforesaid acquisition has been shown in the income tax return. It is an admitted fact that plaintiff-respondent No. 1 Nil Narain Dwari is a Lecturer since 1965 and plaintiff-respondent No. 2 Rupesh Narain Dwari is employed in the American Shipping Company since 1993. Ext. 27 is the sale deed dated 21.2.1989 executed by Ranjit Prasad in favour of plaintiff-respondent No. 1 Nil Narain Dwari for Rs. 30,000/-in respect of 4080 square feet of land i.e. about 3 kattha of plot No. 106 situate in Mauza-Nilkanthpur @ Nurpur. There is recital in the said sale deed that consideration amount of Rs. 30,000/- has been received by the vendor from the vendee by Bank Draft No. L-IA138/620258 dated 20.2.1989 drawn at SBI, Deoghar. Ext. 30,000/-in respect of 4080 square feet of land i.e. about 3 kattha of plot No. 106 situate in Mauza-Nilkanthpur @ Nurpur. There is recital in the said sale deed that consideration amount of Rs. 30,000/- has been received by the vendor from the vendee by Bank Draft No. L-IA138/620258 dated 20.2.1989 drawn at SBI, Deoghar. Ext. 24 is the letter of the principal of Deoghar College, Deoghar which evidences the fact that Nil Narain Dwari has taken a loan of Rs. 31,279/- from his Provident Fund Account No. 5471 on 19.3.1988 for purchase of a piece of land and the said Provident Fund account is maintained in the Central Bank of India, Deoghar. Ext. 24/A is the certificate of the Central Bank of India, Deoghar which evidences the fact that the loan amount stands debited from his Provident Fund account maintained in his bank and the said amount has been paid to him on 19.3.1988. Ext. 25/A is the Pass Book bearing Account No. 10192 standing in the name of Nil Narain Dwari along with his wife which shows that a sum of Rs. 31,279/- taken as loan from his Provident Fund account stands credited in his said SB Account on 19.3.1988. Ext 26, the counterfoil of the deposit receipt dated 19.3.1988 also evidences this fact. The said Pass Book of Account No. 10192 further shows that there has been a withdrawal of Rs. 42,600/- between the period from 3.2.1989 to 14.2.1989. It, therefore, appears that plaintiff-respondent No. 1 Nil Narain Dwari had acquired about 3 katthas of land at Nilkanthpur from the advance of his Provident Fund account. It, therefore, appears the said acquisition has been made without the aid of the joint family or from the nucleus of his joint family and as such, this acquisition is the self-acquired property of plaintiff-respondent No. 1 Nil Narain Dwari. Plaintiff-respondent No. 2 claims to have acquired 7 katthas of land in Mauza-Nilkanthpur vide sale deed dated 16.4.1998 executed by Sitakant Jha and Smt. Krishna Jha in his favour for Rs. 1,60,000/-. This acquisition has been made during the pendency of this suit. Rupesh Narain Dwari is, admittedly, in service in the American Shipping Company. PW 23 has deposed to have executed the sale deed of 7 katthas of land at Nilkanthpur in favour of plaintiff- respondent No. 2, Rupesh Narain Dwari for Rs. 1,60,000/-. This acquisition has been made during the pendency of this suit. Rupesh Narain Dwari is, admittedly, in service in the American Shipping Company. PW 23 has deposed to have executed the sale deed of 7 katthas of land at Nilkanthpur in favour of plaintiff- respondent No. 2, Rupesh Narain Dwari for Rs. 1,60,000/- and he has received the said consideration amount through a cheque of Rs. 50,000/- drawn at State Bank of India and a sum of Rs. 1,10,000/- by Bank Draft of Central Bank of India. He has also deposed that the amount of cheque and draft aforesaid has been withdrawn from the Pass Book of said Rupesh Narain Dwari. His evidence is further to the effect that he has mentioned the receipt of consideration amount by him through cheque and Bank Draft in the said sale deed. He has also deposed that defendants- appellant Praful Narain Dwari and Anil Narain Dwari have no connection whatsoever with the said acquisition by Rupesh Narain Dwari. PW 24 is the brother of the wife of Rupesh Narain Dwari. He has deposed that Rupesh Narain Dwari is employed in American Shipping Company and presently he is posted at Sauddi Arab. Exts. 24/B to 24/C are the certificates granted by Central Bank of India, which show that the aforesaid consideration amount has been withdrawn from NRE Account No. 2 of Rupesh Narain Dwari. Ext. 24/D shows that the amount of Rs. 50,000/- has been withdrawn by cheque from the joint Account No. 4846 of 1944 standing in the name of plaintiff-respondent No. 1 Nil Narain Dwari and plaintiff-respondent No. 2 Rupesh Narain Dwari for payment to Sitakant Jha and the said amount was debited in the said account on 4.4.1988. Ext. 24/E also shows that a sum of Rs. 27,595/- and Rs. 57,718/-have been credited in their SB Account No. 16390 and the said amount has its co-relation with MMDC standing in their name. Ext. 25/B is the NRE Account No. 2 standing in the name of Rupesh Narain Dwari. Ext. 25/D is the joint Account No. 44/4864 which stands jointly in the name of plaintiff-respondent Nos. 1 and 2. Exts. 30, 31 and 32 are the documents of the said Shipping Company, which establish the fact that Rupesh Narain Dwari is in service in the said Shipping Company. Ext. 25/D is the joint Account No. 44/4864 which stands jointly in the name of plaintiff-respondent Nos. 1 and 2. Exts. 30, 31 and 32 are the documents of the said Shipping Company, which establish the fact that Rupesh Narain Dwari is in service in the said Shipping Company. I have already referred the evidence of PW 14 in respect of acquisition of 7 katthas of Nilkanthpur land by virtue of sale deed executed by Sitakant Jha and Smt. Krishna Jha in favour of Rupesh Narain Dwari and after the sale deed Rupesh Narain Dwari also stands mutated in respect thereof. The plaintiff-respondent 1st set had sufficient fund in their bank account for acquisition of Nilkanthpur land and they had discharged their onus by cogent evidence regarding the acquisition of Nilkanthpur property by them from their own income without the aid of the nucleus of the joint family. There is also total absence of any cogent evidence on the record that the joint family of the parties of which Brahm Narain Dwari was the karta had surplus income from which Nilkanthpur property could have been purchased. Even if it is presumed that joint family has the nucleus but in absence of evidence on the record of the income of the joint family properties it cannot be said that the said nucleus was sufficient to enable the Nilkanthpur property to be acquired. The ratios of the case of Kondiram Bhiku Kirdat (supra) and Barhu Ram and others (supra) support the contention made by the learned counsel of the plaintiff-respondent 1st set. I, therefore, hold agreeing with the learned Court below that Nilkanthpur property is the self-acquisition of plaintiff-respondent 1st set. This point is also decided in favour of plaintiff- respondent 1st set and against the appellants. 17. It is relevant to mention here that no other issue was pressed by the appellants during the course of hearing of this appeal. The learned Court below has meticulously considered the evidence on the record in proper perspective and the finding of the learned Court below is based on proper appreciation of the evidence oral and documentary on the record. I see no illegality in the impugned judgment requiring an interference therein. Some of the exhibited documents, which have not been discussed above, have no relevancy regarding the matter in controversy between the parties. 18. I see no illegality in the impugned judgment requiring an interference therein. Some of the exhibited documents, which have not been discussed above, have no relevancy regarding the matter in controversy between the parties. 18. There is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is dismissed. No order as to costs in the facts and circumstances of this case.