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2011 DIGILAW 2894 (ALL)

Ajai Kumar v. Gaya Prasad Agarwal and others

2011-12-19

SANJAY MISRA

body2011
Hon'ble Sanjay Misra,J.:- These are two connected First Appeals. First Appeal No. 544 of 1982 (Ajai Kumar Vs Gaya Prasad Agarwal) has been filed under Section 96 of the Code of Civil Procedure by the plaintiff against the judgment and decree dated 17.9.1982 passed in Original Suit No. 136 of 1980 (Ajai Kumar Vs Gaya Prasad and others) by the VI th Additional District Judge, Allahabad. The appellant (Ajai Kumar) and the twelve defendants belong to the same family from the common ancestor late Rishi Lal Agarwal who died on 22.3.1944. The defendant nos. 1, 2 and 3 are the sons of late Rishi Lal Agarwal and the defendant nos. 10 and 11 are the daughters of late Rishi Lal Agarwal. The plaintiff (Ajai Kumar) and the defendant no. 4 (Vijai Kumar) and defendant no. 5 (Sanjay Kumar) are the sons of the defendant no. 2 (Ram Prasad) whereas the defendant no. 6 (Murli Manohar) and defendant no. 7 (Shyam Manohar) are the sons of defendant no. 1 (Gaya Prasad). The defendant no. 8 (Deepak Kumar) and defendant no. 9 (Sonu) are the sons of defendant no. 3 (Vishnu Prasad). The defendant no. 12 (Ashutosh Agarwal) is the son of defendant no. 6 (Murli Manohar). The plaint allegations in Suit No. 136 of 1980 were that late Rishi Lal Agarwal was Karta of a Joint Hindu Family consisting of himself and his three sons i.e. defendants no. 1, 2 and 3. After his death in 1944 the family remained joint and the eldest son i.e. Gaya Prasad (defendant no. 1) became Karta of the joint family. The widow of late Rishi Lal Agarwal namely Smt. Mallakka Devi was a member of the joint family. The daughter's (defendant nos. 10 and 11) of late Rishi Lal Agarwal got married in the year 1942 and 1953 respectively. Late Rishi Lal Agarwal had authored some books on Shorthand writing and had published and sold them under the name and style of M/s Vishnu Art Press and after his death the business of printing was continued by the joint family under the same name with the defendant no. 1 (Gaya Prasad) as Karta. In the years 1968 and 1969 the family purchased two Mono Casting Machines by mortgaging the ancestral House no. 1 (Gaya Prasad) as Karta. In the years 1968 and 1969 the family purchased two Mono Casting Machines by mortgaging the ancestral House no. 257, Chak, Allahabad belonging to the joint family and he also purchased a plot of land at Mohalla Sadiyapur, Allahabad valued at Rs. 4500/- all from the funds of the joint family. According to the plaint allegations the defendant no. 1 (Gaya Prasad) fabricated a forged partition deed (09.07.1977) however it was never acted upon and the joint family properties and earnings remained joint. Upon such allegations the plaintiff (Ajai Kumar) brought this suit for partition, possession and accounting. The defendant Gaya Prasad contested the Suit No. 136 of 1980 and filed his written statement wherein he stated that an oral family settlement was arrived at on 1.7.1977 and it was reduced into writing on 9.7.1977 wherein all the three sons of late Rishi Lal Agarwal namely (defendant nos. 1, 2 and 3) affixed their signatures. It was also pleaded by him that the family settlement had been acted upon. The defendant nos. 3, 8 and 9, the defendants no. 6 and 7, the defendants no. 10 and 11 and the defendant no. 9 (Sonu) through his father and guardian Vishnu Prasad (defendant no. 3) filed their separate written statements in Suit No. 136 of 1980. The defendant no. 9 (Sonu) supported the plaintiff whereas the other defendants opposed the plaintiffs claim and accepted the family settlement and partition of 1977. The plaintiff (Ajai Kumar) and the defendant no. 1 (Gaya Prasad) gave their oral statement before the court and were also cross-examined. They supported their respective pleas as taken in the plaint and the written statement respectively. On the pleadings of the parties the Trial Court framed as many as 14 issues in Suit No. 136 of 1980. The issue no. 1, 3 and 4 were taken and decided together. The said issues were as quoted here under:- Issue No.1- Whether the business conducted in the name and style of M/s Sri Vishnu Arts Press is of the parties? If so, its effect? Issue No.3- Whether the impugned partition deed dated 09.07.1977 was obtained by defendant no. 1 Gaya Prasad through any malpractice upon defendant no. 2 Ram Prasad Agarwal? If so, its effect? Issue No.4- Whether the impugned partition deed dated 9th of July 1977 was acted upon between the parties? If so, its effect? Issue No.3- Whether the impugned partition deed dated 09.07.1977 was obtained by defendant no. 1 Gaya Prasad through any malpractice upon defendant no. 2 Ram Prasad Agarwal? If so, its effect? Issue No.4- Whether the impugned partition deed dated 9th of July 1977 was acted upon between the parties? If so, its effect? The Trial Court has concluded that there was a family settlement on 01.07.1977 and it was reduced into writing on 09.07.1977. No malpractice was done on defendant no. 2 Ram Prasad Agarwal. The family settlement was acted upon. To arrive at this finding the Trial Court has discussed and placed reliance on the oral evidence of Gaya Prasad (defendant no. 1) given in Original Suit No. 54 of 1979 (Gaya Prasad Vs Ram Prasad Agarwal and others) and held that such evidence is admissible under Section 63 (5) read with Section 65 (b) of the Evidence Act. It has found such statement of Gaya Prasad as truthful and better reliable than the statement given by Vishnu Prasad Agarwal (defendant no. 3 herein) in that suit. The court held that the statement of Ajai Kumar (plaintiff) in this suit was evasive. It further fortified its view by recording that in the earlier suit the brothers of Gaya Prasad had received payments towards their share in the assets of M/s Sri Vishnu Art Press, the share on royalties of books and compensation for their portions of House No. 257, Chak, Allahabad in pursuance to the family settlement. The court held that the three brothers (signatories of the family settlement) accepted and acted upon the family settlement. The dis-satisfaction displayed by Vishnu Prasad (defendant no. 3) by his letters can have no relevance because he never challenged the family settlement. The plaintiff herein namely Ajai Kumar cannot now disrespect the settlement arrived at and acted upon by his father (Ram Prasad). In view of the findings recorded on issues no. 1, 3 and 4 the Trial Court decided the other issues accordingly. First Appeal No. 545 of 1982 (Ram Prasad Agarwal Vs Gaya Prasad Agarwal) was filed against the judgment and decree dated 17.9.1982 passed in Original Suit No. 54 of 1979 (Gaya Prasad Vs Ram Prasad Agarwal and others). The aforesaid suit was filed by Gaya Prasad Agarwal for a declaration that the defendants are bound by the family settlement dated 9.7.1977. The aforesaid suit was filed by Gaya Prasad Agarwal for a declaration that the defendants are bound by the family settlement dated 9.7.1977. It was pleaded in the plaint that under the family settlement the ownership of the business of Rishi Lal Agarwal under name of M/s Vishnu Art Press would be fully owned by the plaintiff Gaya Prasad Agarwal and each of his other two brothers would get a share of Rs. 25,000/- each in lieu thereof. The plaintiff Gaya Prasad Agarwal would pay the first installment of Rs. 8,500/- on 30.9.1977 second installment of Rs. 8,500/- on 30.9.1978 and last installment on 30.9.1979 to each of his two brothers (defendants no. 1 and 3). It provided that in case of failure of payment both the brothers would be entitled to recover the amounts with interest @ 12 percent per annum. The plaintiff was made entitled to operate his business in lower portion of House No. 257, Chak, Allahabad for one year and would pay Rs. 350/- per month to each of his two brothers by way of compensation. The defendant nos. 1 and 3 would get their share in the house partitioned within one year and in case the plaintiff Gaya Prasad Agarwal continued in possession over the property after one year he would pay Rs. 600/- per month to each of his brothers. It was alleged that the plaintiff will keep the accounts of the business and pay the royalty @ 6 percent per annum and in the event of failure for two years his two brothers (defendants no. 1 and 3) would be entitled to take the business and would be bound by the family settlement. The plaintiff alleged that he complied with the terms and conditions of the family settlement by paying the profits but when defendant nos. 1 and 3 did not get House No. 257, Chak, Allahabad partitioned within one year he instituted the Suit No. 54 of 1979 for the relief of declaration. The defendants contested the suit by filing the written statement. They denied exclusive ownership of plaintiff over the business of M/s Vishnu Art Press and defendants no. 1 and 2 namely Ram Prasad Agarwal and Smt. Prabhawati Agarwal even denied the oral family settlement dated 1.7.1977 but they admitted the terms and conditions of agreement dated 9.7.1977. The defendants contested the suit by filing the written statement. They denied exclusive ownership of plaintiff over the business of M/s Vishnu Art Press and defendants no. 1 and 2 namely Ram Prasad Agarwal and Smt. Prabhawati Agarwal even denied the oral family settlement dated 1.7.1977 but they admitted the terms and conditions of agreement dated 9.7.1977. It was also pleaded by them that the settlement was not admissible in evidence because it was unstamped and unregistered. A further plea was taken that the sisters where not made party to the settlement and therefore the settlement was only a temporary arrangement. Hence the suit was bad for non joinder of the sisters. The Trial Court on the pleading of the parties framed issue whether there was any oral settlement between the parties on 1.7.1977 and whether it was reduced into writing. Whether the document dated 9.7.1977 was admissible in evidence. Whether the suit was bad for non joinder of necessary party and whether it was maintainable only for declaration. The Trial Court held that the suit was not bad for non joinder of the sisters. It further held that the suit for declaration is maintainable in view of the family settlement arrived at between the brothers. On Issue no. 3 it found that the settlement dated 9.7.1977 was not admissible in evidence. On Issue no. 1 the Trial Court held that the parties had entered into settlement on 1st July 1977 and it was reduced into writing on 9.7.1977. It also held that the plaintiff is entitled to maintain his suit for declaration. The argument raised in these appeals against the Trial Court judgment is that the family settlement being unstamped and unregistered could not be looked into and that the plaintiff (Ajai Kumar) being not party to it could not be bound by it. It is also argued that there was no evidence in the present suit to prove the family settlement or even to prove that it was accepted or acted upon hence such findings are not based on any evidence. It has further been submitted that when the two daughters (defendant nos. 10 and 11) of late Rishi Lal Agarwal were not made parties or signatories to the family settlement then the same was invalid. It has further been submitted that when the two daughters (defendant nos. 10 and 11) of late Rishi Lal Agarwal were not made parties or signatories to the family settlement then the same was invalid. It is argued that when the family settlement was invalid then the properties at 257, Chak, Allahabad and the assets and business of M/s Sri Vishnu Art Press and also the plot at Sadiyapur, Allahabad were available for partition on the date of filing of this suit. An argument has also been advanced on the finding of the Trial Court that the defendant no. 1 (Gaya Prasad) indulged in malpractice upon Ram Prasad (defendant no. 2) to obtain the partition deed dated 09.07.1977. Upon the submission of learned counsel the points for determination in this First Appeal would be as under:- (1) Whether the findings of the Trial Court of partition between the brothers of the properties in Schedule 'A' is vitiated on facts and law? (2) Whether the document dated 09.07.1977 could be admitted in evidence? (3) Whether the plaintiff' (Ajai Kumar) has been illegally non-suited and his claim for partition of properties at Item no. 1 to 7 of Schedule 'A' of the plaint could not be denied? Taking up the first point of determination it will be seen that an oral family settlement is alleged to have been arrived at on 01.07.1977 between the three sons of late Rishi Lal Agarwal. This oral settlement was reduced into writing and a document dated 09.07.1977 was drawn out. This document was signed by all the three sons of late Rishi Lal Agarwal. None of the signatories challenged it. In fact a Suit no. 54 of 1979 was filed by Gaya Prasad (defendant no. 1 herein) to implement the family settlement. This suit was decreed after contest on 17.09.1982. The operative part of the judgment is quoted here under:- "The plaintiff's suit for the declaration is decreed with costs. Accordingly, it is hereby declared that both the parties are bound by the terms and conditions of the family settlement arrived at on the day of 1st of July 1977 as disclosed in Schedule 'A' at the foot of the plaint and that the defendants have no right to disobey the same. Accordingly, it is hereby declared that both the parties are bound by the terms and conditions of the family settlement arrived at on the day of 1st of July 1977 as disclosed in Schedule 'A' at the foot of the plaint and that the defendants have no right to disobey the same. Let the said terms and conditions of the family settlement as laid down in Schedule 'A' at the foot of the plaint be made part of decree through incorporating in verbatim. Paper No. 20-A be impounded." After the judgment in Suit No. 54 of 1979 Vishnu Prasad Agarwal (defendant no. 3 herein) filed a Suit No. 142 of 1983 (Vishnu Prasad Agarwal Vs Gaya Prasad Agarwal and others) to restrain Gaya Prasad from publishing, printing or selling the books authored by late Rishi Lal Agarwal in view of the violation of the terms and conditions of the family settlement dated 09.07.1977. This suit was decreed on 22.09.1983 in the following terms:- "The suit of the plaintiff is decreed with cost. The defendant no. 1 is restrained from publishing, printing and selling the books named as Hindi Sanket Lipi, Key to Hindi Sanket Lipi, Hindi Sanket Lipi Sar and Hindi Sanket Lipi Vyakwayansh Kosh. Till such time, the plaintiff does not become dis entitle to print, publish and sell the aforesaid books in the market in accordance with the stipulation contained in the agreement dt. 09th July 1977. The defendant no. 1 is directed to handover the entire paraphernalia, manuscripts, blocks and other necessary equipments for that right, title and name "Vishnu Art Press" for publication, printing and for sale of the aforesaid books in accordance with the stipulations contained in the agreement dt. 9th July 1977, but the plaintiff shall not be entitled to get the machines types and other equipments which have already been given to the defendant and defendant no. 1 and the plaintiff got his share out of it." The Civil Appeal No. 836 of 1983 (Gaya Prasad Agarwal Vs Vishnu Prasad Agarwal & others) there against was dismissed on 08.08.1984 by the IVth Additional District Judge, Allahabad and the Second Appeal No. 2544 of 1984 (Gaya Prasad Agarwal Vs Vishnu Prasad Agarwal and another) was dismissed for default on 24.02.2009. Learned counsel informs that the second appeal still stands dismissed and no restoration or recall application has been filed there against. Learned counsel informs that the second appeal still stands dismissed and no restoration or recall application has been filed there against. From the above quoted two judgments it is quite clear that Gaya Prasad Agarwal (defendant no. 1) has a decree of declaration in terms of the oral family settlement dated 01.07.1977 and his brother Vishnu Prasad Agarwal has a decree based on the terms of the family settlement dated 09.07.1977 against Gaya Prasad Agarwal. In this suit the father of Ajai Kumar (plaintiff herein) was a party defendant and in his written statement he had accepted the contention of the plaintiff. All these judgments, plaint and written statement are available in the records of the Trial Court. The factum of agreement for partition between the brothers was never denied and that the parties thereto acted upon it is clearly beyond doubt. It is therefore held that the findings of the Trial Court regarding partition amongst the brothers of the properties in Schedule 'A' is not vitiated on the facts of the present case. The family settlement dated 09.07.1977 is admittedly unstamped and unregistered. The case of the parties is unanimously that the properties and business in question were belonging to late Rishi Lal Agarwal. The plaintiff (Ajai Kumar) and his brothers claim to be the grandsons of late Rishi Lal Agarwal. They would therefore inherit the properties of their deceased father namely Ram Prasad after the partition of 1977. As such after the death of Rishi Lal Agarwal in the year 1944 all the three sons of late Rishi Lal Agarwal (including the plaintiff's father) had share in the business and property. It is not as if they acquired share in the business and property by any other means otherwise than by inheritance. The oral family settlement dated 01.07.1977 was an agreement between the co-sharers for better defining their shares in the business and property. It was an adjustment made by them amongst themselves for their business and residence or occupation. It was not a transfer or conveyance of any property since it already belonged to them even prior to the family settlement. The business and property allotted was ancestral coming from their late father. No new business or property was subject of partition so as to bring the oral partition dated 01.07.1977 within the ambit of an exchange. It was not a transfer or conveyance of any property since it already belonged to them even prior to the family settlement. The business and property allotted was ancestral coming from their late father. No new business or property was subject of partition so as to bring the oral partition dated 01.07.1977 within the ambit of an exchange. Therefore when existing rights were defined amongst themselves it was not liable to be considered as a transfer, conveyance or exchange. Moreover, that issue has been considered by the Trial Court and the intention of partition has been found proved irrespective of the validity of the document dated 09.07.1977 for being unstamped and unregistered. Such a family settlement dated 09.07.1977 was not registered under the Registration Act more particularly when it was subject matter of decree in Suit No. 54 of 1979. Admittedly it has been impounded under the impugned judgment hence it cannot be read even as collateral evidence to determine the circumstances that led to a partition or the intention of its signatories who were co-sharers in the business and property. The first point of determination is answered by holding that the finding of the Trial Court is not vitiated either on facts nor in law of a partition done and given effect to between the three brothers of the properties in Schedule 'A' of the plaint. Insofar as the evidenciary value of the document dated 9.7.1977 is concerned a challenge has been thrown that since it was unstamped and unregistered it could not be relied upon as an evidence. This is the second point for determination in these appeals. The requirement for registration of a document relating to immovable property is under the Registration Act 1908. Section 49 of the Act provides for the effect of non registration of documents that require to be compulsorily registered. There is no prohibition under Section 49 of the Registration Act to receive an unregistered document in evidence for collateral purpose. Therefore even if the document dated 9.7.1977 was unregistered under the Registration Act it could be an evidence for collateral purpose and therefore the submission of learned counsel to the contrary pertaining to its non registration cannot be accepted. Insofar as the document being unstamped is concerned the provision of Section 35 of the Stamp Act are quite clear. Therefore even if the document dated 9.7.1977 was unregistered under the Registration Act it could be an evidence for collateral purpose and therefore the submission of learned counsel to the contrary pertaining to its non registration cannot be accepted. Insofar as the document being unstamped is concerned the provision of Section 35 of the Stamp Act are quite clear. While considering a document which is unstamped but required to be stamped in accordance with the Stamp Act the effect of non registration under Section 49 of the Registration Act cannot be a reason to consider such document for collateral purpose as an evidence. Section 35 of the Stamp Act prohibits an unstamped document to be admitted in evidence and therefore when an unstamped document is admitted as an evidence for collateral purpose it would be against the provisions of Section 35 of the Stamp Act because there is an absolute bar for admission of an unstamped document unless there is compliance with the requirement of the provisos of Section 35 of the Stamp Act. The Trial Court has consequently impounded the document dated 9.7.1977 and to that extent there is no error committed by the Trial Court nor there is any fallacy in the submission made by learned counsel for the appellant. What is to be seen is whether the findings of the Trial Court in both the judgments impugned are primarily or solely based upon the document dated 9.7.1977 which was admittedly unstamped. A perusal of the judgment of the court below indicates that the three brothers had entered into an oral understanding on 1.7.1977 to partition their business and properties. They implemented that understanding and partitioned their business and property and hence gave effect to their oral understanding arrived at on 1.7.1977. The fact that the court below has referred to the document dated 9.7.1977 to gather the understanding of the parties would have been fatal in case such document was the evidence relied by the court even for a collateral purpose. The court below has relied upon the oral statement made by the parties in both the Suits no. 136 of 1980 and Suit no. 54 of 1979 as also the receipts and documents filed in evidence before the Trial Court to reach its conclusion that the parties had in effect partitioned their business and property. The court below has relied upon the oral statement made by the parties in both the Suits no. 136 of 1980 and Suit no. 54 of 1979 as also the receipts and documents filed in evidence before the Trial Court to reach its conclusion that the parties had in effect partitioned their business and property. Therefore under such circumstances it cannot be held in this appeal that the unstamped document dated 9.7.1977 was considered as an evidence by the Trial Court to arrive at its conclusion. Consequently even when the submission of the plaintiff that the document dated 9.7.1977 cannot be considered in evidence even for a collateral purpose is correct no benefit can be derived by him from the said submission because the Trial Court has recorded its findings of partition in business and property amongst the three sons of late Rishi Lal Agarwal on the basis of evidence led by the parties and on the basis that the oral understanding had been given effect to by them. The plaintiff has been non-suited in his suit for partition of Item No. 1 to 7 of Schedule 'A' of the plaint. The reason given by the Trial Court is that when his father had entered into an understanding with his co-sharers and the understanding was implemented then the plaintiff (Ajai Kumar) is bound by it. There is no denial that the business and property in suit were self-acquired by late Rishi Lal Agarwal from his own earnings. There is no evidence or pleading that late Rishi Lal Agarwal inherited any part of the property in suit. Therefore when after the death of late Rishi Lal Agarwal in 1944 his three sons inherited the business and property they became owners and co-sharers to the exclusion of their offsprings. The grand children of late Rishi Lal Agarwal did not inherit the property in separate shares from their fathers. In fact they could get a share only from their fathers share. The three sons of late Rishi Lal Agarwal partitioned the business and property amongst themselves and distinctly defined their respective shares. The defendant no. 1 acquired rights on Item no. 1 to 6 if he paid of the others. Henceforth each son of late Rishi Lal Agarwal become owner of his own defined share to the exclusion of his other brothers. The defendant no. 1 acquired rights on Item no. 1 to 6 if he paid of the others. Henceforth each son of late Rishi Lal Agarwal become owner of his own defined share to the exclusion of his other brothers. The plaintiff's (Ajai Kumar's) father namely Ram Prasad Agarwal got his distinct share and he accepted and acted upon the oral family settlement dated 01.07.1977 for Item No. 1 to 6. He never challenged it and it was subsequently subject matter of a declaratory decree in Suit No. 54 of 1979 for enforcing the oral family settlement. Therefore it is not within the rights of the plaintiff to ask for partition of that property or business which does not belong to his father Ram Prasad. He cannot claim partition of the property and business now exclusively belonging to Gaya Prasad (defendant no. 1) or belonging to Vishnu Prasad (defendant no. 3) as the case may be. The first relief prayed for by the plaintiff' was:- (a) By a decree of partition of the plaintiff's 3/40 share in the properties mentioned in Schedule 'A' may be partitioned and its separate possession may be delivered to the plaintiff. The properties mention in Schedule 'A' to the plaint are as under:- (1) OMII Cylinder Printing Machine valued about Rs. 50,000/- (2) One big Monocasting machines '' '' Rs. 50,000/- (3) 3 Tradle machines '' '' Rs. 18,000/- (4) 2 Cutting machines '' '' Rs. 1,000/- (5) One stitching machine '' '' Rs. 500/- (6) Types and other materials '' '' Rs. 20,000/- (7) A plot situate in Moh. Sadiapur '' '' Rs. 4,500/- (8) House No. 257, Chak, Allahabad '' '' Rs. 50,000/- The Trial Court decreed the plaintiff's Suit No. 136 of 1980 as quoted here under:- "Plaintiff's suit for partition and separate possession of his 3/40 share in the property of Item No. 8 of Schedule 'A' which consists of House No. 257, Chak, Allahabad, is hereby decreed. The rest of the claim stands dismissed. In the circumstances of the case, the parties are hereby directed to bear their costs. Let the preliminary decree be drawn accordingly." As such the claim of the plaintiff of his share in Item no. 8 of Schedule 'A' being House No. 257, Chak, Allahabad has been decreed. His other claims at Item No. 1 to 7 of Schedule 'A' has been dismissed. Let the preliminary decree be drawn accordingly." As such the claim of the plaintiff of his share in Item no. 8 of Schedule 'A' being House No. 257, Chak, Allahabad has been decreed. His other claims at Item No. 1 to 7 of Schedule 'A' has been dismissed. In effect the Trial Court has granted a decree of partition to the plaintiff of his 3/40 share in House No. 257, Chak, Allahabad which he co-shared with his other two brothers namely Vijai Kumar (defendant no. 4) and Sanjai Kumar (defendant no. 5) all sons of Ram Prasad (defendant no. 2.). In insofar as the claims at Item No. 1 to 6 of Schedule 'A' are concerned under the oral family settlement Gaya Prasad (defendant no. 1) had acquired rights over the shares of both his brothers and the oral settlement dated 01.07.1977 was acted upon by all the brothers hence the plaintiff' (Ajai Kumar) being the son of one of the brothers cannot lay his claim on these items as they did not belong to his father Ram Prasad. The land at Item no. 7 of Schedule 'A' was purchased by the wife of Gaya Prasad (defendant no. 1) and the burden of proof lies on the party assailing a transaction as Benami. There is no iota of evidence led by the plaintiff to substantiate that the land was purchased from fund of the Joint Hindu Family. Upon perusal of the record of the Trial Court it is apparent that the plaintiff has not led any evidence on this claim hence he has not discharged his burden at all as such the claim has been rightly denied to him by the Trial Court. No such evidence has been brought on record in these appeals. In view of the findings recorded above the third point of determination in this appeal is decided by holding that the plaintiff (Ajai Kumar) could not claim partition of the properties at Item No. 1 to 7 of Schedule 'A' of the plaint and the decree of partition for Item No. 8 of Schedule 'A' passed by the Trial Court is in accordance with law. The impugned judgments in Suit No. 136 of 1980 and in Suit No. 54 of 1979 do not require any interference in these two First Appeal. Both the First Appeals are dismissed. No order is passed as to costs.