JUDGMENT/ORDER 1. The captioned second appeal is filed by plaintiff questioning the divergent findings of the Courts below, wherein, the appellate Court has reversed the judgment and decree of the trial Court and suit for partition filed by the plaintiff is dismissed by the appellate Court. The cross objection is filed by defendant No.2 questioning the judgment and decree of the appellate Court. 2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court. 3. The family tree is as under: Devindrappa (D-2) Laxmibai (wife) Totamma Channamma (D-1) (Plaintiff) 4. The plaintiff and defendant No.1 are daughters of defendant No.2 - Devindrappa. The plaintiff claims to be the younger sister of defendant No.1. It is specifically pleaded in the plaint that defendant No.2 had no male issues and the plaintiff and defendant No.1 together constitute an undivided joint Hindu family. The plaintiff has also alleged in the plaint that defendant No.1 though daughter is the Kartha of the family and she is managing the ancestral properties. The plaintiff further alleged that till 2007, defendant No.2 was managing the suit schedule properties. It is further alleged that defendant No.1 has created a fabricated document to grab irrigated lands bearing Survey Nos.53/1 and 53/2 and under the concocted documents defendant No.1 claims that dry land bearing Survey No.48/2 is allotted to the plaintiff's share. The plaintiff has further alleged that defendant No.1 has highhandedly got her name mutated to the suit properties and therefore, plaintiff requested defendant no.1 to effect partition by meets and bounds. Inspite of repeated requests, defendant No.1 did not give heed to the requests and therefore, the present suit for partition. 5. Defendant No.1 appeared and contested the proceedings by filing written statement while defendant No.2 was placed exparte. Defendant No.1 stoutly denied the entire averments made in the plaint. Defendant No.1 on the contrary at paragraph No.6 raised a plea of prior partition between the family members and contended that defendant No.2 under a partition deed has allotted a specific properties to plaintiff and defendant No.1 and accordingly, mutation is effected and therefore set up a plea of prior partition and sought for dismissal of the suit. 6. Defendant No.1 on the contrary at paragraph No.6 raised a plea of prior partition between the family members and contended that defendant No.2 under a partition deed has allotted a specific properties to plaintiff and defendant No.1 and accordingly, mutation is effected and therefore set up a plea of prior partition and sought for dismissal of the suit. 6. The plaintiff to substantiate her claim examined herself as PW.1 and two independent witnesses were examined as PWs.2 and 3 and adduced documentary vide Exs.P1 to P9 while defendant No.1 examined herself has DW.1 and two independent witnesses as DWs.2 and 3 and did not produce any documentary evidence to substantiate her defence. 7. The trial Court in the absence of rebuttal evidence indicating that defendant No.2 has effected partition under registered document answered issue No.2 in the negative and held that suit schedule properties are joint family ancestral properties and defendant No.1 has failed to prove the alleged prior partition set up in the written statement. Consequently, suit was decree granting 1/3rd share to the plaintiff. 8. Feeling aggrieved by the judgment and decree of the trial Court, defendant No.1 preferred an appeal before the appellate Court. The appellate Court having independently assessed the oral and documentary evidence has placed reliance on the admissions elicited in the cross examination of the plaintiff. Referring to the admissions elicited in the cross examination, the appellate Court found that there is clear evidence indicating that there is a partition between plaintiff and defendant No.1 and an adverse inference is also drawn against the plaintiff as defendant No.2, who is the father of plaintiff and defendant No.1 has not entered into witness box and deposed in favour of the plaintiff to support her plea. The appellate Court has also casted burden on the plaintiff to prove that partition deed is set up by defendant No.1. The appellate Court held that trial Court has erred in not framing any issue in regard to forgery and misrepresentation. On these set of reasonings, the appellate Court reversed the findings recorded by the trial Court. Consequently, appeal is allowed and suit filed by the plaintiff is dismissed. 9. The plaintiff has preferred the captioned second appeal against the divergent findings. This Court vide order dtd. On these set of reasonings, the appellate Court reversed the findings recorded by the trial Court. Consequently, appeal is allowed and suit filed by the plaintiff is dismissed. 9. The plaintiff has preferred the captioned second appeal against the divergent findings. This Court vide order dtd. 19/10/2022 has formulated the following substantial questions of law: 1) Whether the findings recorded by the appellate Court that the defendants have succeeded in proving partition in the family is perverse, palpable erroneous and in the absence of documentary evidence indicating severance in the family? 2) Whether the appellate Court while re-assessing the entire evidence on record erred in casting burden on the plaintiff to indicate that there was no partition in the family when it was defendant No.1, who had pleaded prior partition? 10. Heard the learned counsel for the appellant/plaintiff and learned counsel for respondent No.1/defendant No.1. 11. The learned counsel for the appellant/plaintiff submits that defendant No.1 having set up a plea of prior partition, the entire burden is rested on defendant No.1 and the said burden would never shift on the plaintiff unless defendant No.1 substantiates her defence that there is already partition in the family at the instance of defendant No.2/father. Since defendant No.1 claims that there is partition deed, it was incumbent on the part of defendant No.1 to produce the said document. Withholding the said document would be fatal to the first defendant's defence and therefore, he would contend that the trial Court has rightly decreed the suit by recording a finding that the plea of prior partition is not substantiated by defendant No.1. The finding of the appellate Court that plaintiff has not proved misrepresentation and forgery is contrary to issue No.2 framed by the trial Court, wherein, the burden is casted on the defendants. Therefore, he would contend that entire approach of the appellate Court in casting the burden on the plaintiff to prove that partition deed is on account of forgery and misrepresentation is patently erroneous. On these set of grounds, he submits that substantial questions of law formulated by this Court have to be answered in favour of the plaintiff and the judgment and decree of the appellate Court needs to be set aside. 12. On these set of grounds, he submits that substantial questions of law formulated by this Court have to be answered in favour of the plaintiff and the judgment and decree of the appellate Court needs to be set aside. 12. Per contra learned counsel appearing for respondent No.1/defendant No.1 would vehemently argue and contend that paragraph No.6 of the plaint would clinch the entire controversy and therefore, burden, if any, which was initially on defendant No.1 would shift on the plaintiff. Referring to paragraph No.6 of the plaint, he would contend that the plaintiff has specifically admitted that there was partition and has also admitted the allotment of properties in favour of defendant No.1 and plaintiff. Referring to these pleadings, he would contend that there was absolutely no burden on defendant No.1 and therefore, appellate Court has rightly dismissed the suit. He would further contend that plaintiff, who is residing at Badadal village along with defendant No.2/father filed a frivolous suit only to undo the partition, which is effected at the instance of defendant No.2/father and to deprive the properties, which are already allotted to defendant No.1 with the consent of defendant No.2/father. On these set of grounds, he would contend that judgment and decree of the appellate Court is in accordance with law and would not warrant interference at the hands of this Court. Accordingly, he requests this Court to answer substantial questions of law in favour of defendant No.1 and dismiss the appeal. 13. Before adverting to the substantial questions of law formulated by this Court, two significant details which are found in the pleadings of the plaintiff and defendant No.1 would be relevant for effective adjudication in the light of substantial questions of law formulated by this Court. 14. Paragraph No.6 of the plaint reads as under: "6. That the defendant No. 1 after the marriage started to reside with her husband at village Navadagi Tq: Sindagi Dist: Bijapur & plaintiff is residing at village Badadal Tq: Afzalpur Dist: Gulbarga as her husband house at village Badadal. That the above suit land are in possession and enjoyment of the defendant No.2 till 2007. That defendant No.1 in order to illegally grab the irrigated lands Sy. That the above suit land are in possession and enjoyment of the defendant No.2 till 2007. That defendant No.1 in order to illegally grab the irrigated lands Sy. No. 53/1 and 53/2 has created a forged and fabricated documents as a partition deed and consent deed had been executed by the defendant No.2 effecting the partition in the all the suit lands between the plaintiff and defendant No.l and allotting to Sy.No. 53/1 and 53/2 to share of the defendant No. l and the dry land Sy.No. 48/2 to the share of the plaintiff and no share allotted to the defendant No.2, is a illiterate person the defendant No.l whispered that documents to be signed for obtain the bank loans all of sudden and blindly signed by the defendant No.2, on the basis of such forged documents defendant No. 1 in collusion of village accountant sanctioned the mutation, hence the above document itself is forged one and there is no equity principle had been adopted by defendant No1. While effecting the mutation and there is no share allotted to the defendant No.2. for his maintenance hence the defendant No.2 filed a Maintenance Petition before the family court at Gulbarga in Criminal Mis. Case No. 89/2009 which is in pending in enquiry therefore Plaintiff and Defendants are entitle to 1/3rd share in the suit schedule property". 15. It would be also useful for this Court to refer to paragraph No.6 of the written statement. The same reads as under: "6. The para No. 6 of the plaint the defendant No. 1 after marriage residing with her husband at village Navadgi Tq. Sindagi Dist. Bijapur and the residence of the Plaintiff with defendant No.2 are residing at Badadal village Tq. Afzalpur Dist. Gulbarga. It is are enjoying the suit property as owners and possessors of the said lands. It is submitted that the father of the plaintiff and defendant No. 1 made allotments by (partition deed) a consent deed allotted shares and accordingly mutations has been carried out in the name of plaintiff and defendant No. 1 therefore the question of creation and fabrication of documents are false claim of the plaintiff and it is further submitted that the virtue of mutation the plaintiff and defendant No. 1 are the owners of the properties, the defendant No. 2 file Cr. Misc. Misc. Petition No. 89/09 for maintenance against this plaintiff and defendant No. 1 in the family court is admitted by the plaintiff being shrewd hidden the concealed the many acts and deliberately not mention the immovable and movable properties like Gold, Ox and cows etc., which received by her, the plaintiff has knowledge about the maintenance and all the facts of the family arrangements made by father i.e., defendant No. 2. The plaintiff appeared proceedings in Cr. Misc. No. 89/09 in family court and appeared through her counsel but she did not opt to file counter objections to maintenance petition. Hence the para No.6 of the plaint is replied." 16. On examining the averments in paragraph No.6 of the plaint and paragraph No.6 of the written statement, what emerges is that plaintiff has seriously disputed the mode of partition. It is the specific contention of the plaintiff that defendant No.1 has concocted a document styled as 'partition deed'. In paragraph No.6 of the written statement, defendant No.1 claims that plaintiff in terms of settlement received golden ornaments, live stocks, ox, cows as well as a residential house. In paragraph No.6 of the written statement, defendant No.1 claims that defendant No.2/father has effected partition by allotting specific properties to the plaintiff and defendant No.1 and sets up partition deed in the written statement. On reading of paragraph No.6 of the written statement, it s clearly evident that the entire burden would lie on defendant No.1 to prove and substantiate the plea of prior partition. The factum of partition has to be proved by defendant No.1 by adducing cogent and clinching evidence. For the reasons best known to defendant No.1 having set up a plea of prior partition, she has strangely not chosen to produce the partition deed as claimed in paragraph No.6 of the written statement. 17. The genuineness in regard to the alleged partition deed set up by defendant no.1 needs to be examined in the context of the maintenance proceedings initiated by defendant No.2/father. The copy of the order passed on an maintenance petition is produced by the plaintiff, which marked at Ex.P9. In maintenance proceedings, defendant No.2/father has claimed maintenance against defendant No.1. This petition is filed by defendant No.2 and his wife. In the said maintenance proceedings, defendant No.2/father has seriously disputed the alleged partition. The copy of the order passed on an maintenance petition is produced by the plaintiff, which marked at Ex.P9. In maintenance proceedings, defendant No.2/father has claimed maintenance against defendant No.1. This petition is filed by defendant No.2 and his wife. In the said maintenance proceedings, defendant No.2/father has seriously disputed the alleged partition. If father is also disputing the alleged partition set up by defendant No.1, then it was incumbent on the part of defendant No.1 to produce the partition deed. Defendant No.1 placing reliance on paragraph No.6 of the plaint cannot get rid of the burden which is originally casted on him. The said burden would never shift on the plaintiff unless the document is produced and same is tested before the Court. The averments made in the written statement are quite clear and definite. It is pleaded that there is a partition and the said partition is reduced into writing. An adverse inference is to be drawn against defendant No.1 for withholding the document under Sec. 114(G) of the Indian Evidence Act. Under Sec. 114(G) of the Indian Evidence Act, 1872, there is a duty cast on the party to lead best evidence which would throw light on the issue in dispute. Non- production of the relevant documents admittedly available with the party would give rise to an adverse inference against him when the said documents if produced would be unfavourable to him. If a party wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted is the principle behind it. 18. The appellate Court has relied on a stray admission elicited in the cross examination without examining the defence set up at paragraph No.6 of the written statement. If defendant No.1 claims that there is a partition, then the said partition has to be proved in the manner known to law. The stray admission elicited in the cross of plaintiff is not conclusive and therefore, the appellate Court was not justified in placing reliance on the stray admission. On reading of the cross examination, it is also noticed that subsequently plaintiff has seriously disputed the alleged partition. The finding of the appellate Court that the plaintiff ought to have examined defendant No.2 to support her plea is also found to be patently erroneous. On reading of the cross examination, it is also noticed that subsequently plaintiff has seriously disputed the alleged partition. The finding of the appellate Court that the plaintiff ought to have examined defendant No.2 to support her plea is also found to be patently erroneous. Defendant No.1 claims that her father/defendant No.2 has effected partition and the same is reduced in writing. If that is so, it was equally incumbent on the part of defendant No.1 to summon her father and examine him to establish the factum of partition. Therefore, appellate Court has virtually misread the entire evidence on record. The appellate Court has also misread the settled proposition of law relating to plea of prior partition set up by the defendant in a partition suit. The burden is wrongly casted on the plaintiff when admittedly under issue No.2, the burden is casted on defendant No.1. Therefore, judgment and decree of the appellate Court suffers from perversity and is palpably erroneous. 19. The finding of the appellate Court that defendant No.1 has succeeded in proving partition is in the absence of documentary evidence let in by defendant No.1. The appellate Court also erred in shifting the burden on the plaintiff and therefore, the finding of the appellate Court that the plaintiff has not discharged her burden indicating that there was no partition is contrary to settled principles laid down by this Court and the Apex Court. 20. For the foregoing reasons, substantial questions of formulated by this are answered in the affirmative. In the light of the discussions made supra, I proceed to pass the following: ORDER The second appeal is allowed. The judgment and decree of the appellate Court is set aside. The judgment and decree passed by the trial Court is confirmed. The cross objection is filed by defendant No.2 who has not chosen to file the written statement. This Court has confirmed the judgment and decree of the trial Court awarding 1/3rd share to the plaintiff. It is always open for defendant No.2 to pay Court fee in FDP proceedings and request the Court to carve out his share. With these observations, cross objection stands disposed of. In view of disposal of main matters, pending applications do not survive for consideration. Accordingly, rejected.