Judgment :- ORAL JUDGMENT: 1. This is an appeal by original defendants nos.1 to 3 against whom a decree for declaration and injunction has been passed. The parties shall hereinafter be referred to as the plaintiffs and the defendants. 2. The facts giving rise to the appeal are as follows – The plaintiffs/respondent nos.1 to 3 and defendant nos.4 and 5 are the joint owners of field Survey No.52/2, which is the subject-matter of the suit. It is the contention of the plaintiffs that until 19/5/1980 the said land was never partitioned amongst the plaintiffs and defendant nos.4 and 5. It is contended that plaintiff no.1 has one-half share in the said suit property while defendant nos.4 and 5 and plaintiff nos.2 and 3 have the other one-half share in the suit property. It is contended that the relations between defendants nos. 4 and 5 and the plaintiffs are strained. The plaintiffs submit that defendant no.4 without the consent of the plaintiffs and defendant no.5 sold 2 acres 15 gunthas of land surreptitiously to defendant nos.1 to 3 by registered sale-deed dated 11/5/1980. The plaintiffs have contended that defendant no.4 had no right to sell the said land to defendant nos.1 to 3. They, therefore, prayed for setting aside that sale. 3. Defendant nos.1 to 3 filed their written-statement. They admitted that they have purchased the suit property from defendant no.4. According to them, the suit land had fallen to the share of defendant no.4 in a partition between defendant no.4 and Laxmibai wife of plaintiff no.1. They submit that since the land had fallen to the share of defendant no.4 in partition on 21/4/1972 under a registered partition-deed, Kesharbai was the exclusive owner and she had every right to sell the property. 4. Defendant nos.4 and 5 did not contest the suit and did not file any written-statement in the suit. 5. The learned Judge of the trial court found that the plaintiffs and defendant nos. 4 and 5 were the joint owners of the suit property. Although he found that there was partition, he found that it was not legal as plaintiffs were excluded. It was also held that defendant no.4 had without any right, title or interest sold the suit property to defendant nos. 1 to 3. 4 and 5 were the joint owners of the suit property. Although he found that there was partition, he found that it was not legal as plaintiffs were excluded. It was also held that defendant no.4 had without any right, title or interest sold the suit property to defendant nos. 1 to 3. He also held that defendant no.4 Kesharbai was not the sole owner of the property by virtue of partition and holding so, he decreed the suit. 6. Feeling aggrieved thereby, defendant nos.1 to 3 preferred an appeal before the District Judge. The learned Joint District Judge, who heard the appeal, also found that the suit property was joint property of the plaintiffs and defendant nos.4 and 5 and they were in possession of the same. He found that defendant no.4 had no authority to sell the property and there was no partition between Laxmibai and Kesharbai. Holding so, he confirmed the decree passed by the trial court. Hence, this second appeal by defendant nos. 1 to 3. 7. The appeal was admitted by order dated 23/4/1998 on the following substantial questions of law. “In view of the finding and reasons as contained in appellate court order regarding partition of properties, whether declaration granted restrictive it to defendant no.4 is justified and raised substantial question of law?.” After hearing the learned counsel for the appellants and the respondents, it was felt that it was necessary to reformulate the question of law. This was necessary because the appeal was preferred by the defendants/purchasers and not the plaintiffs. The above question of law could be formulated had it been the appeal of the plaintiffs. The questions of law, which are now formulated, are as follows – 1. Whether the appellate court was justified in reversing the finding of the Trial court that there was partition amongst Laxmibai and Kesharbai? 2. Whether therefore the appellate court could have set aside the sale in respect of share of the plaintiffs and defendant no.5 if there was partition? 8. I have heard the learned counsel for the appellants and the respondents. 9. It would be necessary first to see what are the pleadings of the plaintiffs. 2. Whether therefore the appellate court could have set aside the sale in respect of share of the plaintiffs and defendant no.5 if there was partition? 8. I have heard the learned counsel for the appellants and the respondents. 9. It would be necessary first to see what are the pleadings of the plaintiffs. In para no.2 of the plaint, the plaintiffs contended that they and defendant nos.4 and 5 are the joint owners of the suit property and there was never any partition amongst them till 19/5/1980 or even any time thereafter. Thus, they contend that Kesharbai/defendant no.4 alone did not have a right to sell the suit property. Defendant nos.1 to 3, who are the purchasers, specifically in para no.19 of the written statement plead of there being a partition between Laxmibai and Kesharbai on 21/4/1972 and same having been registered and suit property having fallen to share of defendant no.4. Inspite of such allegations by defendants, plaintiffs do not come out with a case that the said partition is void. Be that as it may, the fact is that the plaintiffs pleaded the property to be joint while defendant nos. 1 to 3 say that there was a partition and the suit property fell to the share of defendant no. 4. It cannot be disputed that if there was no partition the suit property would belong to the plaintiffs and defendant nos. 4 and 5. Therefore, it will have to be seen that if courts below have properly appreciated the evidence and the facts. Normally, the appellate court is not supposed to interfere with the findings of the trial court unless it is based on no evidence or is totally perverse. The trial judge has certainly accepted as a fact that there was a partition on 21/4/1972 between Laxmibai and Kesharbai yet he records a finding on issue no.2 in the affirmative. Do the plaintiffs prove that S.No.52/2 was not partitioned amongst them and between defendant nos.4 and 5 till 19/5/1980 or any time thereafter? ....... ..... Yes I quote the observations of the learned Judge on that aspect in para no.10 of the judgment. “From the record it appears that the partition is effected in between Laxmibai (Plaintiff No.1A) and Kesrabai (defendant No.4). ....... ..... Yes I quote the observations of the learned Judge on that aspect in para no.10 of the judgment. “From the record it appears that the partition is effected in between Laxmibai (Plaintiff No.1A) and Kesrabai (defendant No.4). But the questions arise before me whether Laxmibsai and Kesarabai have right to partition the property during the life time of deceased Lalchand and by keeping aside the plaintiff no.2, 3 and defendant no.4. The answer is certainly not, because Laxmibai has no right to claim partition during the life time of her husband Lalchand. Even assuming for a moment that the partition the answer is no, because extract of 7/12 of the year 1971-72 to 1978-79, which are at Exhs.108 to 112, are clear that the plaintiffs and defendant nos.4 and 5 are cultivating the field No.52/2 jointly.” 10. From this discussion, it appears that the learned judge accepts that there was a partition but finds that these two ladies could not amongst themselves partition the property. He thus finds that although there was a partition, it was not legal as they could not exclude the plaintiff and defendant no.5. Here, the plaintiffs do not challenge the partition between Laxmibai and Kesharbai at all on any count including their right to partition. When the plaintiffs do not challenge the registered partition-deed, the learned judge could not have decided the question if such partition was valid or not and whether Laxmibai and Kesharbai alone had a right to partition. 11. It appears to me, however, that the trial court had rightly found that there was a partition. The appellate court’s reasons negating the theory do not appear to me to be convincing at all as he has absolutely wrongly appreciated the facts and the evidence. He forgets that civil cases are to be decided on the basis of preponderance of the probabilities. In fact, in the instant case, one need not to go by even preponderance of probabilities as there is ample evidence on record to hold that there was partition on 20/4/1972 as pleaded by defendant nos.1 to 3. 12. The first thing that needs to be noted is that the defendants specifically plead of partition amongst Laxmibai and Kesharbai on 21/4/1972 by registered deed. 12. The first thing that needs to be noted is that the defendants specifically plead of partition amongst Laxmibai and Kesharbai on 21/4/1972 by registered deed. The plaintiffs do not traverse this specific plea on part of the defendants nor do they say by amending the plaint that the said partition is for certain reasons void or not binding on them. The next important circumstance is that Kesharbai/defendant no.4, who executed sale-deed and defendant no.5, who signs the sale-deed as attesting witness do not appear in the court and are ex parte. It is in this background, the facts and the evidence ought to have been appreciated by the courts below. 13. Learned judge of the appellate court observes that though a photocopy of the registered partition-deed was shown to the witness of plaintiff i.e. PW 2, defendants nos.1 to 3 did not call upon the plaintiffs to produce the original deed and since no such attempt was made, secondary evidence was not admissible. The observations of the learned Judge of the appellate court that no notice to produce original was given and therefore, no secondary evidence could be led is against the record. In file ‘D’ of the trial court, the defendants, vide application (Exh.61) produced the copy of notice given under Order 12 Rule 8 of C.P.C. to the plaintiffs. The copy of the said notice is at page No.103 in file ‘D’. By this notice, the plaintiffs were called upon to produce the original. The original was not produced inspite of the notice. PW 1 Parmesh was asked a question as to whether he has produced the original deed and he answered in the negative. He even says that he does not know anything about the partition-deed. It is thus clear that defendants did call upon the plaintiffs to produce the original but the plaintiffs failed. Therefore, the defendants were justified in showing the Photostat copy of the registered partition to PW 2 Balmukund during his cross-examination. PW 2 Balmukund admits in cross-examination his signature on the said document as a attesting witness. He even proves the signature of the executants of the said document. Thus, if the plaintiffs feign ignorance about the partition-deed and do not produce the original, the defendants ought to be allowed to lead secondary evidence. PW 2 Balmukund admits in cross-examination his signature on the said document as a attesting witness. He even proves the signature of the executants of the said document. Thus, if the plaintiffs feign ignorance about the partition-deed and do not produce the original, the defendants ought to be allowed to lead secondary evidence. From the admission of PW 2 of his signature and proving the signature of the executants on the partition-deed, it could be said that the partition-deed was, in fact, proved. The learned judges of both the courts below failed to take into consideration this material piece of evidence. There is other evidence available even if the above one is ignored which I say cannot be. Kesharbai/defendant no.4 had executed a sale-deed Exh.76 in favour of Ramrao Nikam and Namdeo Deshmukh on 4/5/1973. This sale-deed is in respect of southern portion of survey No.78/2. In this sale-deed there is a recital about the field having fallen to her share in the registered partition dated 21/4/1972. Similarly, Laxmibai had also executed a sale-deed (Exh.77) on 2/5/1973 in favour of the above two persons. This sale-deed is of the Northern portion of Field S.No.78/2. In this sale-deed also it is mentioned that this northern portion had fallen to the share of Laxmibai in the registered partition dated 21/4/1972. Thus, both these recitals in the sale-deeds executed by Kesharbai and Laxmibai make a reference to partition between Laxmibai and Kesharbai. Not only there is a reference to the partition-deed but there is a consent by the plaintiffs and defendant no.5 to the execution of the sale-deeds. For execution of sale-deed (Exh.76), plaintiff no.2/Parmesh, no.3 Ramesh and defendant no.5 Mulchand – sons of Ambalal and Kesharbai have given consent. Similarly, for execution of the sale-deed Exh.77 by Laxmibai, her husband i.e. plaintiff no.1 Lalchand had given consent. Both sale-deeds bear their signatures. Even the registered partition-deed bears signature of plaintiff no.1 as attesting witness. Inspite of the fact that Lalchand signed the registered partition-deed, he joins the suit as a plaintiff no.1 and falsely contends that there was no partition at all. Similarly, the other plaintiffs though signed sale-deed by way of consent, which contains a recital of partition and Kesharbai being full owner they have a courage to take an absolutely false plea that there was never a partition. Similarly, the other plaintiffs though signed sale-deed by way of consent, which contains a recital of partition and Kesharbai being full owner they have a courage to take an absolutely false plea that there was never a partition. I may reproduce here an important recital in Exh.76, which goes to show why the plaintiffs and defendant no.4 Kesharbai’s son signed the sale-deed. HINDI TYPING “;kalh laiRrhpk ys[k fygqu ns.kkj jes’k vackykyth othj o ijes’oj vackykyth othj o eqypan vackykyth othj] jkmejkorh laiRrhpk ys[k fygwu nsrks dh] rqEgh ojhy ds’kj tots vackykyth othj fgps toGwu ojhy ‘ksr rqEgh fodr ?ksrys vkgsojizek. ks jft”Vªj okV.kh i=kizek.ks rs ‘ksr frpsp fgLL;kyk vkysys vkgs] vkepk R;k ‘ksrkr gDd ukgh- rqEgkal vkeps gDdkfo”k;h la’k; vkgs Eg.kwu vkEgh rqeps [kjsnh[krkl foukekscnyk laerh nsr vkgksr- vkEgh gDd oxSjs nk[kfo.kkj ukgh- nk[kfoY;kl rks jnn~ vls d#u gh fpBB~h learhlg fygqu fnyh vkgs-” This goes to show that the purchaser had a doubt and was apprehensive about exclusive title of Kesharbai and therefore, he insisted on plaintiffs nos.2 and 3 and defendant no.5 in joining the sale-deed as consenting party. This recital clearly shows that the plaintiffs and defendant no.5 accepted the partition and right of Kesharbai and gave formal consent to sell the property. The learned Judges of the courts below have failed to read the documents on record and ignored the best piece of evidence available on record once again. There is thus more than enough proof of there being a partition and Kesharbai being full and exclusive owner of the suit property. This was all to the knowledge of the plaintiffs and defendant no.5. 14. All this evidence is further corroborated by certain entries in revenue record. Exh.98 is a crop statement. It shows that survey No.58/2 is in the name of Laxmibai and Kesharbai in equal proportion but separate. Exh.99 and 100 are the copies of the Ferfar register i.e. mutation register. It speaks of separate mutation upon partition amongst them. Although the entry is not finally certified, the fact remains that cognizance of partition was taken and separate subdivisions were given, as can be seen from column no.11. Unnecessarily, more weightage is attached to entry not being certified forgetting that an intimation of partition was given to the revenue authorities. In the circumstances, I find that the courts below completely misdirected themselves and ignored the evidence available altogether. Unnecessarily, more weightage is attached to entry not being certified forgetting that an intimation of partition was given to the revenue authorities. In the circumstances, I find that the courts below completely misdirected themselves and ignored the evidence available altogether. The findings are, therefore, liable to be set aside as being perverse. The substantial questions of law are answered accordingly. Since I find that there was partition between Laxmibai and Kesharbai, Kesharbai had become full owner of the property. The plaintiffs and defendant no.5 as well defendant no.4 were fully aware of this partition which is a registered document. It was acted upon by the plaintiffs and defendant No.5. They are estopped from saying that there was no partition. Kesharbai could validly transfer the suit property to defendant nos.1 to 3. They have become full owner of the property. Resultantly the appeal is allowed and the judgments and decree passed by the courts below are set aside. The suit is dismissed. The appeal is allowed with costs throughout. I would also saddle compensatory costs on the plaintiffs of Rs. 2000/- for having raised an absolutely plea.