JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri H.M. Srivastava, learned counsel for the appellant and Sri P.N.Saxena, learned counsel for the respondents. 2. The plaintiff appellant Madhav Prasad and the defendant respondent Radhey Lal are real brother. By this second appeal plaintiff appellant challenges the validity and correctness of the judgment and decree dated 12.4.2001 passed by Civil Judge (S.D.) Mahoba in Civil Appeal No. 20 of 1998, Mahadev Prasad v. Radhey Lal, dismissing the appeal with costs and upholding the judgement and decree dated 9.7.98 passed by Civil Judge (J.D.) Mahoba, dismissing the suit with costs filed by the plaintiff- appellant arising out of O.S. No. 204 of 1984. 3. The relief sought in the appeal is for allowing the appeal by setting aside the decree passed by the Courts below and for decreeing the suit filed by the plaintiff-appellant through out with costs. 4. The concurrent finding of facts by the Courts below by the impugned judgment and decree stated above, have been challenged by Madhav Prasad- plaintiff/ appellant on the ground that the sale-deed in favour of disputed land and house shown in the site plan as” Nizai Bara and Nizai Makan” was for the benefit of the entire family member having been purchased by defendant/ respondent as karta of the joint Hindu family. 5. The appeal has been admitted on the question of law as to “whether the burden of proof in case of separate acquisition of plot during substitution of Joint Hindu Family lies on the person asserting it be individual property.” 6. The further contention of the counsel for the appellant Sri H.M. Srivastava on the question of vacation of interim relief order is that the plaintiff/ appellant filed suit for permanent injunction for restraining the defendant- respondents from alienating any part of the disputed land and house in dispute i.e Nizai Bara and Nizai land appurtenant alleged to have been purchased by Radhey Lal as Karta of HUF. It is stated that the plaintiff- appellant and defendant respondent Radhey lal is 19 years elder to the plaintiff appellant Madhav Prasad hence after the death of his father in 1954, Radhey Lal the elder brother became the karta of the Joint Hindu Family business which was in the name of Radhey Lal and Madhav Prasad. It is stated that the plaintiff- appellant and defendant respondent Radhey lal is 19 years elder to the plaintiff appellant Madhav Prasad hence after the death of his father in 1954, Radhey Lal the elder brother became the karta of the Joint Hindu Family business which was in the name of Radhey Lal and Madhav Prasad. A partititon took place in 1966 in the family whereby their uncle was given another house whereas the plaintiff appellant Madhav Prasad and Radhey Lal the defendant respondent continued to occupy the portions of the house marked as red and green in the plaint map jointly. The dispute Nijai Bara/ land and house was purchased on 29.3.1973 by Sri Radhey Lal, allegedly from the nucleolus of the HUF in 1979. It is stated that though food was separately cooked by the wives but both brothers continued to do their business together and lived together in their respective portions of the undivided property/ house and other facilities such as lavatories and well in front of the house for common use by the two families. 7. It is urged by the learned counsel for the appellant that the Courts below considered the partition in 1975 but overlooked other cogent evidence as well as law laid down in paras 14 and 16 of the judgment in Kashinath Sa, Yamo Sa, Kabadi, etc. v. Narsing Sa, Bhaskar Sa, Kabadi, etc., AIR 1961 SC 1077 . He also urged that it is always open to the members of the Joint Hindu Family to divide some properties of the family and to keep remaining undivided and such properties as are not partitioned can be divided later on in consistence with the rules of Hindu Law. Hence, in view of the judgment rendered above judgment and decree of the Courts below are liable to be set aside and suit filed by the plaintiff appellant be decreed. 8. Per contra Sri P.N. Saxena, learned counsel for the defendant respondent has submitted that the Courts below have given concurrent finding of facts that plaintiff has failed to establish that the disputed property of which partition is sought was not purchased from the nucleus of the HUF. 8. Per contra Sri P.N. Saxena, learned counsel for the defendant respondent has submitted that the Courts below have given concurrent finding of facts that plaintiff has failed to establish that the disputed property of which partition is sought was not purchased from the nucleus of the HUF. It is submitted by Sri Saxena that plaintiff appellant had failed to prove his case before the Courts below for declaring the property in dispute and submits that in fact the land in dispute was purchased by the defendant respondent Radhe Lal in his own name from his own money that Radhey Lal had also purchased other agricultural properties and house apart from the Nizai Bara and Nizai Makan, the disputed property is instant case. According to him the factum of purchase of other properties by Sri Radhey lal the defendant respondent establishes that he had his own funds and as the plaintiff appellant has failed to prove that the property in dispute in this second appeal has been purchased from the funds of Hindu Undivided Family, he could not be granted relief as claim by him. 9. From the perusal of the judgment, records as well as arguments of the counsel for the parties, it appears that the father of the parties in the second appeal died in 1954 and business was established in the names of both the sons Madhav Prasad and Radhey Lal. It also appears that a partition had taken place in the family by which their uncle (brother of their father ) was given a separate property and rest of the properties remained as Joint Hindu Property amongst two brothers respectively. 10. The lower Court framed seven issues in the suit. The two issues relevant for the purpose of this case are as under: ÞD;k fookfnr tehu mHk; i{kksa dh la;qDr lEifRr gS rFkk la;qDr /ku ls [kjhnh xbZ gS vkSj oknh 1 cVk 2 Hkkx dk Lokeh gS+ \ D;k fookfnr lEifRr dk mHk; i{kksa esa cWaVokjk gks pqdk gS \ 11. After considering the argument of the counsel of the respective parties and on perusal of the evidence on record, the Courts below came to conclusion that there is a contradiction in the oral evidence of P.W. 1, Madhav Prasad the plaintiff appellant and in para 2 of his written statement filed by him. After considering the argument of the counsel of the respective parties and on perusal of the evidence on record, the Courts below came to conclusion that there is a contradiction in the oral evidence of P.W. 1, Madhav Prasad the plaintiff appellant and in para 2 of his written statement filed by him. On the basis of documentary evidence particularly from the sale-deed the Court neither found the disputed land and the house shown as Nizai Bara and Nizai Makan, in the site plan the name of the plaintiff as purchaser nor any share in it in his name with his brother as a member of Joint Hindu Family. The Court also noted that for 17 years they lived their respective portions in the house and not together which conclusively showed that there was a partition practical for all purposes between two brothers who were not living jointly in the same house. Even food was cooked separately and they respecting each others privacy. The Court also found that the plaintiff had not given any documentary proof in support of his case that the business was jointly registered in the joint name of the brothers or that the business was being conducted by the elder brother as karta of HUF. jointly by them. The trial Court concluded by a finding of the fact that the plaintiff- appellant had miserably failed to establish his case. The conclusions of the Court below on issue Nos. 1 and 2 are as under : “mijksDr foospuk ds vk/kkj ij bl fu"d"kZ ij igqWaprk gWwa fd okfn bl ckr dks lkfcr djus esa iw.kZr;% vlQy jgk gS fd fookfnr ckMk o edku mHk;i{kksa dh la;qDr lEifRr gS] rFkk bl ckrksa dks Hkh oknh lkfcr djus esa vlQy jgk gS fd fookfnr lEifRr la;qDr /ku ls [kjhnh xbZ gS vkSj mlesa oknh dk 1 cVk 2 Hkkx gS] blds foijhr izfroknh }kjk bl ckr dks c[kwch lkfcr fd;k x;k gS fd fookfnr lEifRr ds lEcUèk esa cWaVokjk gqvk gS] vkSj mlds }kjk tks lEifRr [kjhnh xbZ gS] og mlds rugk iSls ls [kjhnh xbZ lEifRr gS A bl izdkj ls okn fcUnq la0& 1 ,oa 2 oknh ds fo:) fuf.kZr fd, tkrs gSa A” 12. The aforesaid findings were challenged by the plaintiff appellant in appeal wherein they were confirmed by the judgment and decree dated 12.4.2001. 13. The aforesaid findings were challenged by the plaintiff appellant in appeal wherein they were confirmed by the judgment and decree dated 12.4.2001. 13. After hearing the counsel for the parties and perusal of the record, it appears that the plaintiff appellant had failed to discharge his burden of proof which lay heavily upon him as he had alleged purchase for property in dispute from the funds of the Hindu Undivided Family. The law in this regard is that burden of proof lies upon the person who alleges or claim a things and only after discharges his burden of proof that the onus shifts upon the other party. Once the factum that the property was purchased from the nucleous fund of the Hindu Undivided Family could not be established by the plaintiff appellant his case would fail. Hence the suit filed by the appellant has rightly been dismissed by the trial Court as well as by the first appellate Court. As regards the ruling cited by Sri H.M. Srivastava it is in respect of acquisition of land and is not applicable to the facts and circumstances of the case for the reason that the plaintiff appellant failed to prove that he had right in the property as member of the joint Hindu Family for having been purchased from the nucleus of the Hindu Undivided Family for claiming partition at a later point of time. The Courts below have on consideration of documentary and oral evidence have come to conclusion that in the facts and circumstances of the case the two brothers had mutually partitioned the property and were residing in their own separate portions. As regards joint business is concerned two or more persons who are even not members of HUF can carry on a business. Therefore the plaintiff claimed joint business venture with his brother it would not naturally mean that the property ‘Nizai Bara land’ was purchased from the Joint Nucleus of the HUF business. The appellant had to prove that it was not from his own share of money that the property in dispute was purchased by Sri Radhey Lal the elder brother. This is utterly failed to prove. 14. It is rather proved from the record that the property in dispute was purchased by the defendant respondent Radhey Lal from his separate income. The appellant had to prove that it was not from his own share of money that the property in dispute was purchased by Sri Radhey Lal the elder brother. This is utterly failed to prove. 14. It is rather proved from the record that the property in dispute was purchased by the defendant respondent Radhey Lal from his separate income. The Court in second appeal cannot re appreciate the evidence for upsetting of findings recorded by the Courts below unless it is perverse and not based on evidence on record. Since There is no perversity in the findings in the order of Courts below. 15. The substantial question of law in this appeal is accordingly decided against the appellant. 16. Accordingly, the appeal is dismissed. ————