JUDGMENT 1. This second appeal has been filed by plaintiffs/appellants under section 100 of CPC against the judgment and decree dated 16.5.2008 passed by the learned First Additional District Judge, Gwalior, in Civil Appeal No. l8A/08 arising out of judgment and decree dated 14.3.2008 passed by learned IX Civil Judge, Class II, Gwalior, in Civil Suit No. 79A/04 by which suit filed by the appellant/plaintiffs has been dismissed. 2. The briefs facts giving rise to this appeal are that the property in question is comprised in survey No. 536, 537, 538, 540, 541, 542 (Municipal No. 53/ 846) situated at Naugaja Road, Shinde Ki Chhawani, Lashkar, Gwalior was purchased out of family fund by Dr. C.L. Jain (husband of plaintiff No. 1 and father of plaintiff No. 2 and 3) and defendant Prakash Chandra Jain jointly vide registered sale deed in the year 1966. Since then the above mentioned disputed property is in possession of plaintiffs' ancestor. Eight shops have been constructed in the eastern side of the property and they were let out to different tenants through respective rent notes and getting knowledge that the defendant is trying to sell the disputed property on 14.9.2004. Plaintiffs immediately, asked the defendant not to sell the property or any specific part thereof without partition. But, the defendant threatened the plaintiffs that he will sell the property in parts and dispossessed the plaintiffs. The defendants has no right to sell the property without partition by metes and bounds. So, the plaintiffs lodged a complaint with Police Station, Inderganj and published a notice in the newspaper. No partition has taken place between Late Chhotelal Jain and defendant. Partition proceedings taken before the Tehsildar by the defendant are illegal. Chhotelal has died and no notice were served to the plaintiffs. It is further pleaded by the plaintiffs that since the property has been purchased jointly by Late Chhotelal and Prakash Chandra, they have a preferential right to purchase the same by virtue of Hindu Succession Act and they are ready to purchase the same at the market rate. 3. The respondent/defendant has pleaded before the trial Court that the property has been purchased by Late Chhotelal and Prakash Chandra Jain by their personal money and both were having half since in the property. 3. The respondent/defendant has pleaded before the trial Court that the property has been purchased by Late Chhotelal and Prakash Chandra Jain by their personal money and both were having half since in the property. Out of eight shops, four shops of South side are belonging to defendant Prakash Chandra Jain and four shops situated in the North side are belonging to Late Chhotelal and there was an admitted partition between them on 29.12.1979 and, property tax has been imposed accordingly on them. Both plaintiffs and defendants are paying their house tax separately and tax rights of land are also separate. Since there was partition earlier, therefore, there remains no question of partition. The defendants has a right to sell the property which was received by him in his share. 4. The learned trial Court by its judgment and decree dated 14.3.2009 dismissing the suit by holding that disputed property has not been purchased by the joint family fund and partition of the disputed property has taken place between Late Chhotelal and defendant and plaintiffs are not entitled to get the disputed property partitioned. The learned lower appellate Court also agreed with the view of the learned trial Court and dismissed the appeal filed by the plaintiffs/appellants. 5. The following questions of law have been framed by this Court for decision of this appeal. "(a) Whether a partition could be held on the basis of mutation order passed by the property tax officer for the purpose of collecting property tax separately from the joint owners? (b) Whether the finding about the prior partition given by the learned Courts below stand vitiated being the same is given without considering the effect of defendant's subsequent application for partition before Tehsildar which amounts to an admission that no prior partition has taken place? (c) Whether the property, which is not of joint family property but owned jointly by two persons could be partitioned orally in contravention of the provisions of Transfer of Property Act and Registration Act?" 6. All the three questions relate to partition of the disputed property and its validity. According to the plaintiffs the disputed property was purchased from Joint Hindu Family Fund and according to the defendant, property was purchased by him jointly with Late Chhotelal from their own money. All the three questions relate to partition of the disputed property and its validity. According to the plaintiffs the disputed property was purchased from Joint Hindu Family Fund and according to the defendant, property was purchased by him jointly with Late Chhotelal from their own money. Whatever may be source of money of purchasing the suit property, it is to be seen that whether there was any partition between Late Chhotelal and defendant. It is the defendant/respondent, who has alleged that partition between him and Late Chhotelal has taken place. Therefore, burden of proving the fact that partition, has taken place was on the defendant/respondent, who alleges that partition has taken place. The defendant/respondent has mentioned in his written statement that on 29.12.1979 the property tax was assessed on the admission of partition by Late Chhotelal and him. In his evidence as PW- 2 defendant has alleged that the said partition was taken place in the year 1976 and he has also admitted in evidence that he has filed application for partition and demarcation of boundaries before the Tehsildar on which case no. 1/03-04 has been registered and copy of application for partition is Exhibit D-20. According to the defendant, a copy of assessment order of property tax is Exhibit D-1. 7. Exhibit D-l is the order of assessment passed on 22.12.1979 by which property tax has been imposed in the name of Late Chhotelal and defendant was four shops each. The order Exhibit D-l has been passed after the case has been remitted back to the property Tax Officer by order dated 4.8.1978 passed by the Additional Property Tax Commissioner which shows that proceedings for property tax has been pending before 22.12.1979. Order Exhibit D-l has been passed on 22.12.1979 while according to the defendant's pleadings that such partition has taken place on 29.12.1979 on the basis of admission of partition. Therefore, there is difference between the date of assessment of property tax and date of partition mentioned by the defendant which is after seven days from the date of passing of order Exhibit D-l. However, the order of assessment of property tax cannot be treated as evidence of partition, as no partition has taken place by that order. Therefore, the plea of defendant that partition has taken admitted by Late Chhotelal on 29.12.1979 is not sustainable. Therefore, the plea of defendant that partition has taken admitted by Late Chhotelal on 29.12.1979 is not sustainable. Payment of property tax separately by the assesses cannot be treated as evidence of partition between them. 8. Another defence or ground according to the defendant was that the partition between Late Chhotelal and Prakash Chandra Jain took place in the year 1976 is told by defendant Prakash Chand Jain in his cross examination in paragraph 23. He also told in his evidence that there was oral partition in the year 1976. Learned counsel for the appellants has challenged the so called oral partition on the ground that value of property involved in partition is more than 100 rupees, therefore, oral partition is not permissible. Further, registration of which partition was also required. 9. For has statement against his pleading, defendant has produced witness Bal Krishan Jain (DW 2), who has said that there was a partition between late Chhotelal and Prakash Chandra Jain in the year 1976. He has not remembered the date and month of partition. He further said that he was present at the time of partition. Although, there is no averment by defendant that partition took place in presence of this witness. He further goes to the extent that Ajit Kumar and Rakesh Kumar (plaintiffs) also gave consent for the partition. He has admitted that he has no knowledge that at the time of so called partition, Ajit and Rakesh were minors. He further admits that at the time of partition, he was sitting in the house and partition took place in the house itself. 10. Defendant has admitted in his examination-in-chief in paragraph 7 that he had filed an application before Naib Tehsildar for partition and demarcation of boundaries. Copy of application is Exhibit D-20 and Case No. 1/03-04. Although the learned counsel for the appellants has raised various grounds regarding irregularities committed by the Revenue Court in the proceedings of partition and demarcation, Even if those irregularities are not considered, it is clear from the act of evidence that no partition has taken place before the year 2004 and evidence regarding earlier partition seems only to legalize the acts of alienation which were in pipe lines at the time of filing of suit. Although, three dates of partition including the mode of partition are self contradictory on the basis of which both the Courts below should have drawn against the plea of partition taken by defendant. Learned counsel for the appellants has submitted that both the Courts below have erred in holding that partition has taken place between late Chhotelal and Prakash Chadra Jain. The self contradictory evidence are more direct connection to say the evidence as pleadings adduced by the defendant has been believed by the trial Court and confirmed by the learned trial Court which were apparent on the face of the record. Therefore, the findings of both the Courts below regarding partition between late Chhotelal and Prakash Chandra Jain cannot be sustained. 11. Considering the contradictory pleadings and evidence of respondent Prakash Chandra Jain, the plea of the partition becomes suspicious and his evidence also become doubtful because if the partition has taken place in the year 1976, there is no pleading regarding the same. Further, if the partition has taken place on 29.12.1979, there is no partition deed. According to the document Exhibit D-l dated 22.12.1979 which is an order of assessment of property tax which cannot be treated as deed of partition. Further there is no admission that partition took place between co-owners. Even, if the shops were rented out by the co-owners separately, the partition between them cannot be presumed because it is to be registered and no registration has been done. Further, if the partition has taken place in the year 1976 or even in the year 1979, what was the need to move the application for partition in the year 2004 before the Revenue Authorities and that too for the land which is according to defendant himself a diverted land. The act of moving application for partition before the Revenue Authorities in the year 2004 again confirmed that no partition has taken place earlier. There is no plea of respondent/defendant that partition has been taken place on the orders passed by the Revenue Authorities. 12. The act of moving application for partition before the Revenue Authorities in the year 2004 again confirmed that no partition has taken place earlier. There is no plea of respondent/defendant that partition has been taken place on the orders passed by the Revenue Authorities. 12. However, the learned counsel for the appellants has pointed out so many irregularities in the proceedings for partition under section 178 of M.P. Land Revenue Code and grave irregularities committed in giving finding that non-applicants i.e. present appellants are absent even after the service of the notices, Certified copy of the notices show that no notice has been served from either late Shri Chhotelal or plaintiffs/appellants. 13. Learned counsel for the respondent has submitted that there is concurrent finding of both the Courts below that partition has taken place. Plaintiffs have no right over the land which has come in the share of respondent Prakash Chandra Jain but as mentioned above plea of partition has not been established by evidence by the defendant. The procedure followed by the Revenue Authorities was illegal and against the facts available on the record, therefore, the so called partition by Revenue Authorities is void-ab-initio which need not to set aside by any Court of law. 14. Learned counsel for the appellants has cited the judgment of this Court in the matter of Sheikh Akbar and another v. Samer Kumar Pal and Others reported in 2001 (4) MPHT 37 in which it has been held that, joint acquisition by brothers without the aid of nucleus of joint family property, it would be presumed under Hindu Law that it is joint family property. 15. Learned counsel for the appellants has also submitted that it was the duty of respondent/defendant to prove the partition and he has not proved the partition by evidence adduced by him. In this matter, he has cited a judgment of this Court in the case of Ramesh v. Tikam & Others reported in 1994 (1) Vidhi Bhasvar 111 = 1993 (1) MPJR 181 in which it has been held that one who wants fact of partition of joint family to be accepted must plead and prove that. The respondents have pleaded something regarding partition and proved some other modes of partition in the evidence which are totally contradictory and unbelievable. The respondents have pleaded something regarding partition and proved some other modes of partition in the evidence which are totally contradictory and unbelievable. Therefore, finding of partition and thereby dismissal of suit by both the Courts below are perverse and cannot be sustained. Suit property is still a joint property of both the plaintiffs/appellants and respondent and if the defendant is alienated the same without the consent of appellants, such a sale shall be void. In this respect, the learned counsel for the appellants has cited a judgment of this Court, in the matter of Bhagwan Das v. State of M.P and another reported in 2001 (1) MPJR 113 in which it has been held that, alienation of joint Hindu family property without the consent of coparcener sale deed is void in areas governed by Banaras School. Even it is treated that suit land is not a joint Hindu property, it is the property of joint ownership of plaintiffs and defendant, therefore, without partition between them, any sale of such property or partition thereof shall be void. 16. Learned counsel for the respondent has submitted that both the Courts below have given concurrent findings regarding partition and it is a finding of fact and it cannot be interfered in Second Appeal but findings of both the Courts below are perverse on the fact of record. Plea of partition has not been proved by the respondents in accordance with their pleadings and given without following the provisions of law. Therefore, the finding of fact which is against the provision of law involves the questions of law and it cannot be said that it is purely a finding of fact. 17. An order passed by property Tax Officer for assessment of property tax and even on the basis of mutation order cannot be treated as partition between the co-owners of the property. Therefore, it is alleged that partition could be held on the basis of mutation order passed by the Property Tax Officer for the purpose of collecting property tax separately from the joint owners. 18. The finding of fact that prior partition given by the Courts below stands vitiated being the same is given without considering the effect of evidence of subsequent application for partition before Tahsildar which amounts to an admission that no prior partition has taken place. 19. 18. The finding of fact that prior partition given by the Courts below stands vitiated being the same is given without considering the effect of evidence of subsequent application for partition before Tahsildar which amounts to an admission that no prior partition has taken place. 19. Although, the plea of oral partition bas not been proved as statement of defendant and his witnesses are contradictory to this effect and further contradictory to the pleadings of respondent/defendant, therefore, it is also held that property which is not of joint family but owned jointly by two persons cannot be partitioned orally in contravention of Transfer of Property Act and Indian Registrarion Act. 20. All these substantial questions are answered in favour of appellants/plaintiffs. The judgment and decree passed by both the Courts below are set aside and suit of plaintiffs/appellants is decreed as follows : (A) It is declared that respondent/defendant Prakash Chandra Jain has no right to alienate the suit land bearing Survey Nos. 536, 537, 538, 540, 541, 542 (Municipal No. 53/846) situated in Mohalla, Naugaja Road Shinde Ki Chhawani, Lashkar, Gwalior, without partition by metes and bounds with the plaintiffs and further he has no right to dispossess the plaintiffs from the above land of joint ownership with him. It is also declared that pleadings have right of preemption for purchasing the share of defendant/respondent. (B) The defendant/respondent shall not transfer any part of the above land without partition and shall not dispossess the plaintiffs forcibly from the above land and also shall not make any construction or change the nature of the above property. (C) The respondent shall bear the cost of this appeal and also counsel fee shall be calculated and paid to the appellants/plaintiffs according to the rules, if certified. 21. Decree be framed accordingly.