JUDGMENT Sanjay K. Agrawal, J. 1. The substantial question of law formulated and to be answered in defendant's No. 1 to 3 second appeal is as under:- "Whether both the Courts below were justified in holding that the suit for partial partition filed by plaintiff is maintainable ignoring the fact that the suit does not embrace entire joint family property especially ignoring the property held by them in the State of Uttar Pradesh?" [For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court]. Sans unnecessary details, the facts which are essential to be stated for the purpose of disposal of the present second appeal are that:-- 1.1 The following genealogical tree will establish the relationship between the parties:-- 1.2 The suit property originally belonged to four brothers, namely, Raghunandan Prasad, Prayag, Shivram and Ramasray. Plaintiff-Jagdish is son of Shivram, whereas, defendants No. 1 and 2 are sons of Raghunandan Prasad and defendant No. 3 is grandson on Raghunandan Prasad, defendant No. 4 is son of Prayag and defendant No. 5 is son of Ramasray. 1.3 The joint family of the four brothers purchased scheduled suit property out of their income. Plaintiff Jagdish son of Shivram commenced an action seeking decree for partition of his 1/4th share in the scheduled suit property described in Schedule-A attached with the plaint stating inter alia that the scheduled suit property was purchased with the income of all four brothers, namely, Raghunandan Prasad, Prayag, Shivram and Ramasray. 1.4 It is further case of the plaintiff that defendant No. 1-Ramgopal refused to allot share demanded by him in the joint family property, leading to institution of suit seeking decree of partition and separate possession to the 1/4th share in the scheduled suit property. 1.5 Defendants No. 1 to 3 filed their joint written statement denying the contentions of the plaintiff and took a principal defence that scheduled suit property was never purchased from the income of the joint family and therefore, the plaintiff has no share in the scheduled suit property and suit is liable to be dismissed. 1.6 Defendant No. 4 filed his written statement stating inter alia that he is also entitled for 1/4th share in the joint family property, whereas defendant No. 5 opposed the suit by filing separate written statement. 1.6 Defendant No. 4 filed his written statement stating inter alia that he is also entitled for 1/4th share in the joint family property, whereas defendant No. 5 opposed the suit by filing separate written statement. 1.7 The plaintiff examined two witnesses and exhibited one document in support of his suit, whereas defendants No. 1 to 3 were examined 3 witnesses and filed seven documents in support of their defence. 1.8 The Trial Court by its judgment and decree dated 11-12-1992 partly decreed the suit holding that the plaintiff is entitled for 1/4th share in the scheduled suit property excluding 4.549 hectares. 1.9 Feeling dissatisfied with the judgment and decree of the Trial Court, defendants No. 1 to 3 filed First Appeal under Section 96 of the Code of Civil Procedure, 1908 (in short 'the CPC') before the First Appellate Court. The First Appellate Court by its impugned judgment and decree dated 7-10-1998, partly modified the decree holding that the property left out by the Trial Court for partition will also be included and held that the scheduled suit property is joint family property of Raghunandan Prasad, Prayag, Shivram and Ramasray and each one has 1/4th share in that property and the plaintiff is also entitled for 1/4th share in that property. 2. Impugning the legal acceptability and sustainability of the judgment and decree of the First Appellate Court, this second appeal has been filed by the defendant's No. 1 to 3, which has been admitted on substantial question of law formulated and recorded in the opening paragraph of this judgment. 3. Mr. A.K. Prasad, learned counsel appearing for the appellants/defendants No. 1 to 3 while criticizing the judgment and decree of two Courts below, would submit that both the Courts below have committed palpable error of jurisdiction in decreeing the suit for partition filed by the plaintiff, ignoring the fact that the entire suit property held by parties in the State of Uttar Pradesh has not been embraced in the instant suit. Thus, the suit for partial partition as framed and filed by plaintiff was not maintainable. 4. As against this, Mr. Thus, the suit for partial partition as framed and filed by plaintiff was not maintainable. 4. As against this, Mr. H.B. Agrawal, learned Senior counsel appearing for the respondent No. 1/plaintiff would submit that:- (i) the plaintiff and defendants have no other joint family property except the scheduled suit property described in Schedule-A attached with plaint ready for partition; and (ii) the defendants No. 1 to 3 neither raised any specific plea in that regard before the Trial Court, nor issue was framed and no evidence was adduced by the defendants No. 1 to 3. Therefore, at this stage, defendants' No. 1 to 3 cannot be permitted to raise such a plea for first time so as to frustrate the decree passed by two Courts below. 5. Mr. Viprasen Agrawal, learned counsel appearing for the defendant No. 4 opposed the contention raised by appellants/defendants No. 1 to 3 and supported the contention of the plaintiff. 6. I have heard learned counsel for the parties and considered the rival submission made therein and also perused the record of both the Courts below with utmost circumspection. Answer to substantial question of law:- 7. It is well-settled principle of law that a suit for a division of a portion of the family property cannot lie as a suit for partial partition is not maintainable. The suit for partition of family property must embrace all the joint family property. 8. The root question that falls for consideration before this Court is whether the defendants' No. 1 to 3 have pleaded and established that the parties have some more joint family property, which has not been embraced while filing the instant suit for partition? 9. In order to have a proper comprehension of the attack made to the decree passed by two Courts below on the ground that the suit is for partial partition, a brief and quick survey of plaint is imperative. 10. A close reading of the entire plaint would show that the plaintiff has pleaded that the scheduled suit property described in Schedule-A attached with the plaint have been purchased by four brothers, namely, Raghunandan Prasad, Prayag, Shivram and Ramasray jointly, as the said property has not been inherited by them from their common ancestral Shri Mannu Lal. 10. A close reading of the entire plaint would show that the plaintiff has pleaded that the scheduled suit property described in Schedule-A attached with the plaint have been purchased by four brothers, namely, Raghunandan Prasad, Prayag, Shivram and Ramasray jointly, as the said property has not been inherited by them from their common ancestral Shri Mannu Lal. The defendants' No. 1 to 3 while filing their written statement did not raise any specific objection in the written statement with regard to that any other property being held jointly by them has been left out in the instant suit. On the contrary, the specific defence of defendant's No. 1 to 3 was that the scheduled suit property is not joint family property. Defendant No. 4 supported the case of the plaintiff, whereas defendant No. 5 has stated that the parties held the joint family property at Uttar Pradesh, but he did not identify or elaborated that any property other than the scheduled suit property is rather ready for partition in the instant suit. 11. Thus, from the perusal of the plaint and written statements, it would appear that the defendants' No. 1 to 3 did not take any specific plea that property other than the scheduled suit property is ready and available for partition among the parties to be included in the instant suit filed by the plaintiff has been left out, except unspecific and vague plea taken by the defendant No. 5. 12. Since, the parties did not take any specific defence with regard to the aforesaid fact, that other joint family property being available for partition. The Trial Court rightly did not frame any issues in that regard and suit proceeded for trial and during the course of evidence, none of the parties lead evidence to demonstrate that some other property at Uttar Pradesh has been left out in the suit. Thus, while filing the instant suit for partition and thereby the Trial Court did not have any opportunity to examine the said plea that the suit is for partial partition and the some joint family property has been left to be included in the instant suit for partition. 13. Thus, while filing the instant suit for partition and thereby the Trial Court did not have any opportunity to examine the said plea that the suit is for partial partition and the some joint family property has been left to be included in the instant suit for partition. 13. The question that falls for consideration is whether the plea which was not pressed before the Trial Court as well as the First Appellate Court, the judgment and decree passed by the two Courts below can be set aside and the parties can be permitted to raise such a plea for the first time in appeal? 14. In case of Lala Kalyan Das vs. Maqbul Ahmad, AIR 1918 PC 53 , it has been held that when such a plea was not pressed before the lower Court, in absence of evidence that the judgment wars erroneous on the point, the appellants must accept that position and cannot raise the same in the appeal for the first time. 15. Though, the defendant No. 5 has raised unspecific plea that the parties had some joint family property at Uttar Pradesh, but it has not been established that is why defendant No. 5 has not filed any such appeal. 16. In case of Kenchegowda (Since Deceased) by Legal Representatives vs. Siddegowda @ Motegowda, (1994) 4 SCC 294 , the Supreme Court has held that a suit for partial partition is not maintainable. The relevant portion of the report reads as under:-- "10. It is argued on behalf of the appellant that the learned Single Judge went wrong in converting the suits for declaration and injunction into one for partition when all the joint family properties were not made the subject-matter of the suit nor were all the co-sharers impleaded. It is well-settled in law that a suit for partial partition is not maintainable." 17. The principle that a suit for a division of a portion of the family property cannot lie and must comprise the entire family property has also been held in case of Rajendra Kumar Bose vs. Brojendra Kumar Bose, AIR 1923 Cal 501. It has been held by Calcutta High Court in Paragraph-4 of the report, which reads as under:- "4. The principle that a suit for a division of a portion of the family property cannot lie and must comprise the entire family property." 18. It has been held by Calcutta High Court in Paragraph-4 of the report, which reads as under:- "4. The principle that a suit for a division of a portion of the family property cannot lie and must comprise the entire family property." 18. The Calcutta High Court also pointed out the exception to the aforesaid rule by holding that where the different portions of the family property are situated in different jurisdictions and separate suits for separate portions is maintainable. Paragraph-5 of the report reads as under:- "5. Exceptions to the rule that a suit cannot lie for partition of a portion of the family property have been recognised when different portions of the family property are situated in different jurisdictions, aid separate suits for separate portions have sometimes been allowed, where different rules of substantive or adjective law prevail in the differed Courts." 19. The aforesaid decision Rajendra Kumar Bose (supra) has been followed by Calcutta High Court in case of Maliadev Missir and Others vs. Basudev Missir and Others, AIR 1981 Cal 9 , in which, it is held that the normal state of every Hindu family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. This presumption is stronger in case of brothers than in the case of cousins. Paragraph-8 of the report reads as under:- "8. The normal state of every Hindu Family is that it is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. This presumption is stronger in the case of brothers than in case of cousins." 20. Thereafter, again in Mahadev Missir (supra), the principle has been followed by the Calcutta High Court in Rajendra Kumar Bose (supra), all events the plaint indicates that there was properties in a different State i.e. Uttar Pradesh, the suit is not hit by the doctrine of partial partition. Paragraph-5 of the report reads as under:-- "5. The first question arises whether the suit is bad for partial partition. No issue was framed on this and no such evidence was adduced. It appears from the judgments that the issue No. 1 relating to the maintainability of the suit was not pressed. Law in respect of partial partition is well settled after the Bench decision of Rajendra vs. Brajendra, AIR 1923 Cal 501. No issue was framed on this and no such evidence was adduced. It appears from the judgments that the issue No. 1 relating to the maintainability of the suit was not pressed. Law in respect of partial partition is well settled after the Bench decision of Rajendra vs. Brajendra, AIR 1923 Cal 501. Sir Ashutosh Mookerjee speaking for the bench has stated that in a suit for partition all the properties must be brought into the hotch-potch. But there are exceptions, i.e., when the properties are situated in different districts, there is different law for the property which is distantly situated, when the property is not partible and when the property is not in possession of the coparceners and may consequently be deemed to be really not available for partition. This principle has been followed in the bench case Kasiswar vs. Nakkuleswar in. At all events the plaint indicates that there were properties in a different state, i.e. in U.P. The suit is not hit by the doctrine of partial partition." 21. Thus, in the light of aforesaid pronouncements of law, it is held that though the suit for partial partition is not maintainable, but in the instant case, the defendants' No. 1 to 3 have utterly and miserably failed to establish that the property jointly held by the parties in the jurisdiction of the Court, which tried the suit was ready/available for partition and if any property is situated outside the jurisdiction of the Court, trying the suit would come within the exception as pointed out in case of Rajendra Kumar Bose (supra) followed in Mahadev Missir (supra). 22. Accordingly, the Trial Court has rightly decreed the suit of the plaintiff, which has been affirmed by the First Appellate Court by its well merited judgment and both the Courts below are absolutely and perfectly justified in decreeing the suit of the plaintiff. I do not find any infirmity/illegality in the aforesaid judgments and it is hereby affirmed. 23. Resultantly, the second appeal filed by the defendant's No. 1 to 3 fails and is hereby dismissed. Suit of the plaintiff stands decreed with no order as to costs. A decree be drawn-up accordingly.