MANIK MOHAN SARKAR, J. ( 1 ) THE judgment and decree passed by Smt. N. Majumder, learned Civil Judge (Senior Division), Purulia dated 20. 12. 2001 in Title Suit no. 121 of 1998, is under challenge in the present appeal, at the instance of plaintiff-appellant since the said suit was dismissed on contest. ( 2 ) IN the pleading before the learned Trial Judge, appellant being plaintiff there, projected his case in the style as himself being the elder brother of the respondent Nos. 1 and 2 being defendant Nos. 1 and 2 before the trial Court in the capacity of the 2nd brother and the youngest brother of the plaintiff. Being well placed in service at Coal India (E. C. L.) as Area Manager/agent, having decent income, plaintiff imparted all the education costs of the said two brothers, since he had soft corner towards them and also he used to meet the family expenses of their ancestral house at Jharbagda. Ultimately, defendant no. 1 started his practice at Manbazar on completion of medical education and the defendant No. 2 joined at Sammilani College, Bankura as a lecturer. As the original residence of the parties at village Jharbagda was 3 K. M. s away from Manbazar and as there was dearth of accommodation in the said Bastu having their different co-sharers, to avoid future difficulties and complications, all the three brothers (appellant and respondent Nos. 1 and 2) decided to purchase a Bastu land at Manbazar to construct their houses there and accordingly, out of their own income jointly purchased the 'schedule -1' property measuring one acre three decimals at Manbazar from one Mir Sahadat Ali at a consideration amount of Rs. 8,000/- (Rupees eight thousand) only though a major portion of the said amount was borne by the appellant as respondents had no sufficient income at the relevant point of time. They also purchase 'schedule - 2' property jointly measuring one acre seven decimals at Singraidih being an agricultural land of Bahai type from one Surya Narayan Singha mahapatra and in that case also appellant shared major portion of the consideration amount. ( 3 ) AFTER purchase of the 'schedule -1' property all the parties, being three brothers, decided to construct their residential house thereon and accordingly, construction work was taken up at their instance from their joint fund. ( 3 ) AFTER purchase of the 'schedule -1' property all the parties, being three brothers, decided to construct their residential house thereon and accordingly, construction work was taken up at their instance from their joint fund. Plaintiff-appellant claimed to have purchased coal from Coal India Limited for brick kiln and also purchased cement and other building materials from asansol at a cheaper rate and also contributed major portion of money towards the construction. The house was completed within three/four years from the date of purchase of the land, at a total sum or expenditure around Rs. 2 (two) lakh. The house property so constructed was a single storied one having six rooms besides dining space, kitchen, latrine etc. so as to provide two rooms each to the three brothers. The appellant-plaintiff also claimed to have purchased two acres of paddy land at Mouza Gobindapur jointly besides 'schedule - 1' and 'schedule - 2' properties which has been described subsequently as Schedule - 2 (a)' in the plaint. The appellant claimed that he along with his said two brothers respondent Nos. 1 and 2, have one-third share each in the Schedule properties and have not been partitioned on amicable approach upon the denial of the respondent No. 1 specifically and so, the appellant being the plaintiff brought the suit for partition before the trial Court. ( 4 ) RESPONDENT No. 1 denied the claim of the appellant in respect of imparting his education cost and also bearing the family expenses of their ancestral house at Village Jharbagda and claimed that their father Shri Ashutosh singha Mahapatra (since deceased) bore the entire education cost of all the three brothers out of the income from his salary as a teacher of a school at tisco. It is further claimed by the respondent No. 1 that so long their father was in service, he used to look after the family and after his retirement he used to reside with the respondent No. 1 in his rented house at Manbazar. This respondent claimed that the appellant used to reside at his place of posting at colliery during his service period and after his retirement he is residing in a flat at Trisha apartment on G. T. Road, Gopalpur, Asansol and the respondent No. 2 is also residing in his place of posting at Bankura by constructing his own house there. This respondent claimed that the appellant used to reside at his place of posting at colliery during his service period and after his retirement he is residing in a flat at Trisha apartment on G. T. Road, Gopalpur, Asansol and the respondent No. 2 is also residing in his place of posting at Bankura by constructing his own house there. In respect of the 'schedule -1' land the respondent No. 1 claimed that it was purchased by him alone from one Mir Sahadat Ali though he caused the recital of the names of the appellant and respondent No. 2 as purchasers in the said Purchase Deed due to cordial relations among them and also claimed that his brothers paid not a single furthing towards the consideration amount. This respondent No. 1 also claimed that out of his own income he constructed a house on the 'schedule -1' property without any concern or participation by the appellant or respondent No. 2, by purchasing cement and building materials from Manbazar and Purulia and it is also claimed that taking advantage of the existence of their names in the Sale/purchase Deed in respect of the property in 'schedule - 1', the suit for partition was filed to grab the property of this respondent. Besides that, respondent No. 1 claimed to have constructed a cow-shed, dug a well and established a "gobar Gas Plant" in different portions of the 'schedule -1' property by obtaining loans from different authorities and banks. At the concluding part of the written statement before the trial Court this respondent No. 1 as defendant No. 1 there has stated that though the 'schedule - 1' property was his self-acquired property, as his two brothers' name appeared in the Sale Deed, he left two-third portion of that land vacant after construction of his own residential house there, for allotting the appellant and respondent No. 2 to construct their respective house there if they so liked. ( 5 ) THE respondent No. 2 also filed a written statement before the trial court counter-signing the claim as made out by the appellant in his plaint before the learned trial Court and supported the case of the appellant. ( 5 ) THE respondent No. 2 also filed a written statement before the trial court counter-signing the claim as made out by the appellant in his plaint before the learned trial Court and supported the case of the appellant. ( 6 ) THE learned Trial Judge, on consideration of the materials on record and also on consideration of the evidence adduced by the respective parties, disbelieved the plaintiffs claim for partition of the suit property, specially, in respect of the properties and specially of 'schedule 2' and 'schedule 2 (a)' properties as having no title documents to that effect and also disbelieved the claim of the plaintiff of having participated in the construction work of the house on the "schedule 1" property and has opined that she could not pass any decisive decree for partition in respect of unascertained land. ( 7 ) BEING aggrieved by and dissatisfied with the said decree, the plaintiff has preferred the present First Appeal claiming that the learned trial Court made non-application of mind and came to an erroneous view of dismissing the suit without declaring any decree of partition even though she made a finding that the plaintiff along with his brother-defendants had equal shares in the Schedule suit properties as their joint properties and also came to an erroneous view by splitting up the Schedule 1 property into the jointness in the land in question and the house constructed thereupon. ( 8 ) MR. Roy Chowdhury, learned senior Advocate appearing for the appellant submitted that among the three brothers, only respondent No. 1 was a dissenting party in respect of the claim of partition though there is no denial from any of the parties that the Schedule 1 property was purchased in the name of these three brothers as per description in the list concerning Sale deed and also there is no denial that the Schedule 2 and Schedule 2 (a) properties were purchased by these three brothers jointly. It is his submission that the dispute, if any, only centered round the claim of the partition of the house building property constructed upon Schedule 1 since there is a claim of the appellant that it was constructed out of the joint fund of the parties, the appellant having the major contribution to the fund and it is counter-claimed by the respondent No. 1 that it was constructed by him alone out of his own fund and the plaintiff-appellant or the respondent No. 2 did not share to the cost of such construction. Mr. Roy Chowdhury specifically referred to the notes on three diaries which have been produced and proved by the respondent No. 1 as "ext - E" Series and claimed that the nature of entries in different pages of the said three diaries go to show that those were done at a single sitting for creation of a document favouring the claim of the respondent No. 1. He has also referred to the nature of handwriting, the colour of the ink used, over-writing made and rubber stamps of different entries in different ways, could not prevent the mind to make a presumption that all those are manufactured one and those were done only to defeat the claim of the present appellant and the respondent No. 2. ( 9 ) MR. Sahoo, learned Advocate appearing for the respondent No. 1 submitted that the jointness of the properties in the three Schedules, is not ignored in view of the oral evidence adduced by the parties including the respondent No. 1 and rather admitted to be joint, but according to him, the house constructed on the Schedule 1 property was undertaken by the respondent No. 1 alone since he was in need to have his own residence as the appellant was residing in his own flat purchased at Asansol while respondent no. 1 is residing in his house constructed by him at Bankura and the respondent no. 1 was residing in a hired premises at that point of time. ( 10 ) IT is contended by Mr. 1 is residing in his house constructed by him at Bankura and the respondent no. 1 was residing in a hired premises at that point of time. ( 10 ) IT is contended by Mr. Sahoo with reference to the oral evidence of respondent No. 1 before the trial Court that the respondent No. 1 has claimed that he used to maintain the accounts for the construction work date-wise and regularly as far as possible and practicable though he could not give a definite date or time when the construction work was started. Mr. Sahoo has referred to the statement of respondent No. 1 stating that he purchased coal for the purpose of manufacturing bricks through brick kiln and that he purchased cement and employed masons for the purpose of continuing with the construction work day to day till the building was completed after a span of ten years as claimed by the respondent No. 1. In this context, Mr. Sahoo referred to Ext.- E Series to justify the respondent No. 1 s claim that he used to maintain day to day account for the construction work. ( 11 ) MR. Roy Chowdhury, learned senior Advocate appearing for the appellant, with reference to the construction of the house building over Schedule 1 property, referred to the statement of the appellant before the learned Trial judge as P. W. 1 wherein he had stated that the schedule 1 property was purchased by the three brothers after consultation and decision for constructing their houses thereon and that he supplied coal for the purpose of manufacturing bricks for the said house building by procuring the same from the E. C. L, at a cheaper rate and also he procured cement from Asansol also at a cheaper rate for the purpose of the said house building. It is also submitted by Mr. Roy chowdhury that not only the appellant, but the respondent No. 2 also participated by contributing fund to the process of construction of the house building over the schedule 1 property and thereby the appellant did not claim the credit of construction of the house over schedule 1 property upon himself alone and claimed that it was a joint venture of all the three brothers contributing to the joint fund according to their respective capacities. ( 12 ) IN reference to the controversy over the said construction of the house concerned reference may be made to the statement of respondent No. 1 as D. W. 1 before the learned trial Court where he stated that he purchased coal one full truck at a cheaper rate through the plaintiff who was then the manager of a colliery and thereby participation of appellant-plaintiff in the supply of building materials to the house concerned has not been totally ignored by the respondent No. 1 since he has not produced any paper or receipt to show that he himself purchased the coal out of his own pocket with the assistance of the appellant. Though the D. W. 1 claimed that he purchased cement from the shop of one Nitai Kundu, Purulia Lokobrati Society and one Aditya Charan Sen of Manbazar did not produce any receipt in respect of such purchase of cement from any of such dealers. Though Ext. E Series give reference to noting of some daily notes in respect of daily account, as already referred earlier, presumption of noting those entries by a single sitting cannot be ruled out as claimed by Mr. Roy Chowdhury. Further, though some daily accounts were maintained there is no evidence from the side of the respondent that the funding of those accounts were made by the respondent No. 1 alone. ( 13 ) IN reference to the statement made by Mr. Roy Chowdhury, learned senior Advocate for the appellant and Mr. Sahoo, learned Advocate for the respondent No. 1 and also in reference to the materials on record, we are of the view that since the suit properties were purchased by the parties by a common Deed on each occasion of respective schedules, all the three parties have equal share in those properties unless a different mode of purchase of the same is proved by the party contradicting the same. ( 14 ) SO, now dispute remains to be decided before us is that whether the parties, having equal share in the suit properties concerned, can also claim equal share in the constructed house over the suit property in Schedule I as claimed by the plaintiff or whether rateable partition can be claimed by the appellant over it. ( 14 ) SO, now dispute remains to be decided before us is that whether the parties, having equal share in the suit properties concerned, can also claim equal share in the constructed house over the suit property in Schedule I as claimed by the plaintiff or whether rateable partition can be claimed by the appellant over it. ( 15 ) AS already discussed by us in the present appeal that the respondent No. 1 was unable to prove his claim of construction of house by his own funding, the case of the respondent No. 1 that the house belongs to him and cannot be subjected to partition, is unacceptable. In course of his submission, Mr. Roy Chowdhury, learned senior Advocate for the appellant referred to a decision reported in 41 Cal WN 613 in a case in between Nutbehari das v. Nani Lal Das, in reference to the claim of the respondent No. 1 about the improvement over the schedule 1 property by raising household construction. In this context, this Court held that : "it is an important principle that a co-sharer covering the whole estate with improvements cannot get compensation therefor on a partition; and when one co-sharer has put up buildings on the land, the most ordinary method in partition is to allot to him for his share a portion of the land which contains the building. But when that cannot be done or would not be fair, it may nevertheless be unreasonable and unnecessary to treat such co-sharer exactly as the others. " ( 16 ) IN this context, Mr. Roy Chowdhury claimed that even if one of the co-sharers raises a construction over a joint property, it is the burden upon him to show that he got consent of the other co-sharers to do such construction by himself by deeming a division in the co-ownership of the suit property amicably. ( 17 ) IN this connection, Mr. Sahoo, learned Advocate for the respondent no. 1 has also relied upon the decision reported in (1999)3 Supreme Court cases 482, (Kochkunju Nair v. Koshy Alexander and Ors. ). With reference to the said citation, Mr. ( 17 ) IN this connection, Mr. Sahoo, learned Advocate for the respondent no. 1 has also relied upon the decision reported in (1999)3 Supreme Court cases 482, (Kochkunju Nair v. Koshy Alexander and Ors. ). With reference to the said citation, Mr. Sahoo claimed that the act of the respondent No. 1 in construction of the house building done over the schedule 1 property for his own residence and also in establishing a Gobar Gas Plant and digging a well over the suit property gives a presumption that he got those construction works done separately by himself from own fund within the knowledge of the other two brothers, having no residence of his own from them at the time of such construction and thereby it cannot be deemed to have been done from the nucleus of the joint fund of the parties and the said house building cannot be a subject matter to the partition as claimed by the appellant. The contention of the above decision as cited is referred below : "when a division of the co-ownership property takes place, the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinary grant such equitable relief when claimed (vide Nutbehari Das v. Nanilal Das ). If the other co-owner objects to the construction of a homestead, he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course, it is open to him to get it partitioned through a suit. " ( 18 ) IN reference to the claim by the respondent No. 1 that he constructed the house building by himself without any intervention to the contribution of funding by his other two brothers, Mr. Roy Chowdhury submitted that any of the co-sharers can raise such construction provided there is an act of severance from the joint family status by the act of the co-sharers with their respective consent and he also submitted that such an severance from the joint family status can be done by one of the co-sharers even if the other co-sharers of the joint property does not give any consent to that. In that respect Mr. In that respect Mr. Roy chowdhury refers a decision reported in AIR 1969 Supreme Court 1076 at page 1080, which is quoted below: "it is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If however the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status. " ( 19 ) IN consideration of the claim of the respective parties, we are of the view that the admission on the part of the respondent No. 1 that the three schedule properties were purchased by all the three brothers by separate common Deeds for each schedule, no doubt, form those properties as joint properties of those three brothers having their equal one-third share each and unless otherwise proved by the party having such acquisition from the nucleus of a common fund, those are deemed to be joint properties of the parties of this Appeal and all the three brothers have equal shares therein and can claim partition of his one-third share. In reference to the judgment passed by the learned trial Court, we are unable to follow why the learned trial Judge denied the partition of the property concerned even though she found that the parties had equal share in the suit properties concerned. In reference to the judgment passed by the learned trial Court, we are unable to follow why the learned trial Judge denied the partition of the property concerned even though she found that the parties had equal share in the suit properties concerned. The learned trial Judge's finding over the conduct of the case by the plaintiff-appellant as careless and negligent, cannot be appreciated since all the three parties never denied that the acquisition of those properties were done by the three brothers by common deeds though the document of title in respect of schedule 2 and schedule 2 (a) were not produced at the time of hearing of the case before the learned trial judge. Even then the admission of the parties about the acquisition of title by way of joint properties could have been appreciated by the learned trial Judge. Further, though the respondent No. 1 failed to adduce appreciable evidence in respect of his lone funding to the construction of the house concerned on the schedule 1 property, how she came to the finding that it was done by the respondent No. 1 alone and it was not a joint property of the parties and cannot be partitioned. ( 20 ) IN our view, the finding of the learned trial Judge is not correct and the dismissal of the suit claiming partition by the present appellant as plaintiff before her, cannot be permitted to sustain. ( 21 ) WE are, thus, of the view that the decree of dismissal passed by the learned trial Judge should be set aside and the appellant's claim for partition should be allowed in the present appeal. ( 22 ) THE judgment and decree passed by the learned trial Judge are hereby set aside. We declare that the plaintiff, the defendant No. 1 and the defendant No. 2 each have 1/3rd share in the suit properties. The suit is, thus, decreed in preliminary form. Parties are granted liberty to have an amicable settlement between them by two months. In default, liberty is granted to either of the parties to approach the learned trial Judge for partition of the suit properties by metes and bounds by appointing a partition commissioner. In the event, a partition commissioner is appointed, the partition commissioner shall try to maintain the respective possession of the parties in the suit properties as far as practicable. In default, liberty is granted to either of the parties to approach the learned trial Judge for partition of the suit properties by metes and bounds by appointing a partition commissioner. In the event, a partition commissioner is appointed, the partition commissioner shall try to maintain the respective possession of the parties in the suit properties as far as practicable. ( 23 ) THE appeal is, thus, allowed. ( 24 ) HOWEVER, in view of the context of the present appeal, we do not pass any order as to the costs.