JUDGMENT : M.S. JAWALKAR, J. 1. Heard. 2. The present Second Appeal is filed by the appellants being aggrieved by the judgment and decree passed in Regular Civil Appeal No. 4/1997 on 23/03/2007 by the Court of 1st Ad-hoc Additional District Judge, Nagpur reversing the judgment in Regular Civil Suit No. 859/1977 of the Court of the VIIth Joint Civil Judge, Junior Division, Nagpur dated 01/10/1996, granting the counter claim of the appellants/defendants in respect of partition of the agricultural ancestral properties. 3. The Plaintiff’s case in brief is as under: It would be convenient to reproduce genealogy in the matter as under: 4. The Plaintiff Kashinath was cultivator and milkman at Mouza Shivangaon, Taluka and District Nagpur. The original Defendant Nos. 1 to 5 were the step brothers and the Defendant No. 6 was his real brother. The father of the original Defendant Nos. 1 to 5 namely late Dajiba died about three years back when the Suit was filed. Genealogical tree of late Kashinath (original owner/common ancestor) is given in Paragraph No. 1 of the Plaint which is reproduced above. It is submitted that one Kashinath is the common ancestor in the Kantode family. He died long ago leaving behind his three sons namely Raghunath, Shiva and Zamya. After the death of common ancestor, the joint hindu family having Field Survey Nos. 98, 99 & 100 total area 11.9 acres of land at Isasani, Patwari Halka No. 46, Taluka and District Nagpur was partitioned between Raghunath and Zamya as the other brother namely Shiva was dead. In this partition, the Field Survey No. 98 was allotted to the share of Zamya and the Field Survey Nos. 99 & 100, area 5.38 acres, came to the share of late Raghunath. The other brother namely Shiva and his two sons namely Ramaji and Pandu were also dead at the time of partition. 5. Late Raghunath was having two wives namely Gajrabai and Radhabai. Smt. Gajrabai had two sons namely Dajiba and Bajirao and Radhabai had three sons namely Kashinath, Sadashiv and Manikrao. Sadashiv and Bajirao died issueless. Late Dajiba was having five sons i.e. Defendant Nos. 1 to 5. At the time of death of Raghunath, he had agricultural field property i.e. Khasra Nos. 99 and 100 at Mouza Isasani and house property at Shivangaon to his share. Sadashiv and Bajirao died issueless. Late Dajiba was having five sons i.e. Defendant Nos. 1 to 5. At the time of death of Raghunath, he had agricultural field property i.e. Khasra Nos. 99 and 100 at Mouza Isasani and house property at Shivangaon to his share. After the death of Raghunath till today, the above property is not partitioned. The agricultural property is situated at Mouza Shivangaon was only partitioned amongst the original Plaintiffs Kashinath, Manikrao and Dajiba i.e. father of the Defendant Nos. 1 to 5 about 30 years back. In view of the said partition, Dajiba got share in Khasra No. 59/1, area 2.67 acres, Khasra Nos. 247 & 248, area 7.16 acres. His name was also mutated in the Government records. Thereafter, late Dajiba did not pay the land revenue. Hence, these fields were put to an auction in the year 1937. The Plaintiffs purchased Khasra No. 59/1, area 2.67 acres from his self-earned money and other Khasra Nos. 247 & 248, area 7.16 acres were purchased by Zhadba. The Plaintiff became the absolute owner of the property which he received in partition and which he purchased in auction. As such, the Plaintiff is claiming partition of the Suit House of Mausa Shivangaon and claiming his 1/3rd share. 6. The Defendants filed their written statement and admitted relationship inter se between the parties. It is also admitted that there was Joint Hindu Family property at Mouza Isasani which came to the share of late Raghunath. It was their contention that after the death of Raghunath till today, the property is not partitioned. They denied that the agricultural property at Mouza Shivangaon was partitioned amongst the Plaintiffs, Manikrao and Dajiba about 30 years back. They have further contended that the Plaintiffs have earlier filed Civil Suit bearing No. 24/1969 in which it was held that the property standing in the name of Raghunath was never partitioned. They claimed that the present Suit is hit under Section 11 of the Civil Procedure Code. Their main contention was that the property in the name of Kashinath or in the name of his sons and brother are liable to be put in hotch-pot for partition by metes and bounds and story that Kashinath had purchased the property by his self-income is denied specifically. Their main contention was that the property in the name of Kashinath or in the name of his sons and brother are liable to be put in hotch-pot for partition by metes and bounds and story that Kashinath had purchased the property by his self-income is denied specifically. It was their contentions that the properties standing in the names of Kashinath, Manikrao and Dajiba and their sons still stand to be the property belonging to the stock of joint family. Their contention in fact is that the Suit House be put in hotch-pot for effecting the complete partition. The Defendants also filed their counter claim vide Exhibit 26. 7. The learned Trial Court held that the Plaintiff has proved that the house at Shivangaon and Field Survey Nos. 99 and 100, Village Isasani is the ancestral joint Hindu Family property. It is also held by the learned Trial Court that the Defendant proved that along with the Suit Property, the property mentioned in Paragraph No. 6 of the written statement, should also necessary to be put in hotch-pot for partition. It is held that the Plaintiff failed to prove that there was any earlier partition. It is also held that the Suit is barred by res-judicata. The learned Trial Court also held that the Defendant No. 1 proved that the properties mentioned in Paragraph No. 5-2-A of the counter claim Exhibit 26 is joint family property. 8. This Court vide order dated 23/09/2008 framed following substantial question of law: (i) Whether the first appellate Court could have dismissed the counter claim on the ground that the requisite court fee was not paid, though the appellants had deposited the requisite court fees along with the application at Exh.63? (ii) Whether the first appellate Court could have dismissed the counter claim only by recording that the counter claim was not sustainable also on merits? (ii) Whether the first appellate Court could have dismissed the counter claim only by recording that the counter claim was not sustainable also on merits? And again vide order dated 03/07/2023 framed additional substantial question of law: (iii) Whether the finding by the First Appellate Court on the point of res judicata is perverse, particularly for the reason that the same judge i.e. 13th Joint Civil Judge, Junior Division, Nagpur had held in Regular Civil Suit No. 858/1977 vide judgment dated 13.08.1983, confirmed in Regular Civil Appeal No. 419/1984 vide judgment dated 03.12.1988 delivered by the Principal District Judge, Nagpur that the earlier judgment in Civil Suit No. 24/1969 between the same parties or their ancestors, would be binding and would operate as res judicate, holding that there was no earlier partition and that all the properties were held jointly? (iv) Whether the evaluation of the evidence by the First Appellate Court is perverse, in only considering the answers to some suggestions instead of taking an overall conspectus of the entire evidence into consideration? (v) Whether the finding of the First Appellate Court that there was partition by metes ad bounds between the family members of the appellants and the respondents herein, of the properties in the past, particularly in 1935 and 1970 is based on no evidence and hence perverse? (vi) Whether the reliance placed by the First Appellate Court on Exhibits 112, 113, 123, 124, 125 and 126 to arrive at the conclusion that there was prior partition amongst the entire family members by metes and bounds, amounts to grave perversity, not born out from the entries in Exhibits 112, 113, 123, 124, 125 and 126?” 9. The learned Counsel for appellant submitted that it is mentioned in the plaint itself that after the death of original ancestral Kashinath, there was partition between Raghunath and Zamya as Shiva was dead then. It is further submitted that year of partition or year of death of Kashinath is not mentioned. However, it is mentioned that there was a partition, after the death of common ancestral Kashinath and in that partition certain agricultural field etc. fell to the share of Zamya and certain fell to the share of Raghunath. However, we are concerned with the property went to the share of Raghunath. There is no dispute over the fact that Raghunath was having two wives Gajrabai and Radhabai. fell to the share of Zamya and certain fell to the share of Raghunath. However, we are concerned with the property went to the share of Raghunath. There is no dispute over the fact that Raghunath was having two wives Gajrabai and Radhabai. There is also no dispute over the legal heirs of Gajrabai and Radhabai. 10. It is contention of the plaintiffs that partition of some of the properties took place between Kashinath, Manikrao and Dajiba 30 years back, i.e. 30 years back before 1977, which can be said to be in the year 1947. There are some agricultural fields mentioned by plaintiffs. The plaintiff says that prior to 1935 the ancestral properties mentioned therein were partitioned between the 5 sons that means before 1935. So far as factum of partition is concerned, the averment, assertion and evidence of the plaintiff Kashinath or on his behalf, is to the effect that there were two partitions. 11. The learned Counsel for the Respondent No. 1 vehemently submitted that the Second Appeal is not maintainable and it is submitted that as held in Suresh Lataruji Ramteke vs. Sau. Sumanbai Pandurang Petkar and Others, Civil Appeal No. 6070 of 2023, that a Second Appeal in terms of Section 100 of the Civil Procedure Code is maintainable only if it involves the substantial question of law. The Hon’ble Apex Court in the said judgment while considering what would constitute the substantial question of law has specifically held that re-appreciation of evidence is not permissible unless findings of the Appellate Court can be considered as perverse in deciding the Second Appeal under Section 100 of the Civil Procedure Code. The Hon’ble Apex Court further held that Section 100 does not permit reversal of finding of the Lower Appellate Court merely on the ground that in the facts, another view was possible. 12. The learned Counsel for respondent No. 1 further relied on V. Ramachandran Ayyar vs. Ramalingam Chettiar, AIR 1963 SC 302 and submitted that Second Appeal is not maintainable. If the appreciation of evidence is erroneous and the finding of fact incorrect, it is not open to challenge under Section 100 of the Civil Procedure Code the said finding of fact. 13. If the appreciation of evidence is erroneous and the finding of fact incorrect, it is not open to challenge under Section 100 of the Civil Procedure Code the said finding of fact. 13. Learned Counsel for the Respondent No. 1 relied on Suresh Lataruji Ramteke (supra), R.V.E. Venkatachalla Goundar (supra), Jai Singh vs. Shakuntala, Theaga Ranjan and Another vs. Venugopal (supra) and submitted that in the instant matter, there is no substantial question of law involved and the question as framed by the order dated 23/09/2008 as well as order dated 03/07/2023 not being substantial question of law, the Appeal deserves to be dismissed on this ground alone. 14. Whereas earned Counsel for the appellant relied on Azgar Barid (Dead) by LRs. Mazambi alias Pyaremabi and Others, (2022) 5 SCC 334 , wherein, First Appellate Court had reversed findings recorded by the Trial Court which were based upon correct application of evidence. High Court has given sound and cogent reasons as to why an interference with findings of First Appellate Court was required. First Appellate Court has failed to take into consideration voluminous, oral as well as documentary evidence on the basis of which, Trial Court has recorded its finding. It was held by Hon’ble Apex Court that finding as recorded by First Appellate Court are based on conjunctures and surmises. The High Court could interfere under Section 100 with such findings. 15. Learned Counsel for appellant placed reliance on Chandrabhan (Dead) through LRs. and Others vs. Saraswati and Others, 2022 SCC Online SC 1273, in support of his contention that if Court have drawn wrong inference from proved facts by applying the law erroneously, the High Court in appeal under Section 100, can interfere with such orders. 16. Considering the substantial question of law already framed, in my considered opinion, there is no question of maintainability of second appeal on the ground that no substantial question of law involved. Moreover, question of perverse finding is raised by way of this appeal. In view of settled position of law once the appeal is admitted on substantial question of law, Court is required to decide the same. In my considered opinion question framed by this court involves substantial question of law which needs adjudication. 17. It is submitted that Kashinath Raghunath Kantode had filed Civil Suit No. 24/1969 for ejectment and possession of suit house. In my considered opinion question framed by this court involves substantial question of law which needs adjudication. 17. It is submitted that Kashinath Raghunath Kantode had filed Civil Suit No. 24/1969 for ejectment and possession of suit house. In the said Civil Suit Kashinath was the sole plaintiff and defendants were Dajiba, Bhaurao and Gulab. In the said suit, the plaintiff Kashinath had come up with the case that upon the death of Raghunath original ancestral which occurred 30 years before the suit, which would be in the year around 1939, there was partition between the sons of Raghunath, i.e. all the 5 sons. In the said Civil Suit also, factum of partition of the ancestral property was pleaded, so also the pleadings and evidence about government auction of certain properties also finds place in the case of the plaintiff. 18. It is contended that the same set of pleadings and evidence has been put forth and relied on by Kashinath in the present Civil Suit bearing No. 859/1997. In the judgment in Civil Suit No. 24/1969, dated 15/12/1973, discussed all the pleadings and evidence. Similarly, Kashinath Raghunath Kantode, the Plaintiff herein had also filed another Civil Suit No. 858/1977 in which Gulab S/o Dajiba Kantode was the Defendant. The Suit was for possession and Permanent Injunction regarding open piece of land. In this Suit, the Plaintiff Kashinath had again pleaded the same thing about the partition, government auction etc. The said Suit i.e. Civil Suit No. 858/1977 came to be dismissed vide judgment dated 31/08/1983. Against the judgment dated 31/08/1983 in Regular Civil Suit No. 858/1977, Regular Civil Appeal No. 419/1984 filed by Kashinath which also came to be dismissed. It is vehemently submitted by the learned Counsel for the Appellants that this is the third round of litigation filed by the same Plaintiffs against the same Defendants in which the factum of partition of joint family properties is again being sought to be agitated by the Plaintiff Kashinath after having lost in Civil Suit No. 24/1969 and also having lost in Regular Civil Suit No. 858/1977. 19. It is submitted that in these circumstances, Order II Rule 2 of the Civil Procedure Code becomes relevant and important. The issue and factum of alleged partition have been decided against the Plaintiffs. The Court held that there was no partition ever, whether of agricultural or house property. 19. It is submitted that in these circumstances, Order II Rule 2 of the Civil Procedure Code becomes relevant and important. The issue and factum of alleged partition have been decided against the Plaintiffs. The Court held that there was no partition ever, whether of agricultural or house property. As such, there is no question of the same issue and subject matter being raised again and again as it would be hit by the principles of res-judicata. 20. Learned Counsel for respondent relied on Gurubux Singh vs. Bhooralal, AIR 1964 SC 1810 , wherein, the Hon’ble Apex Court has held that a plea of a bar under Order 2 Rule 2 of CPC can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the causes of action in the two suits. 21. The learned Trial Court rendered a finding that the properties at Khasra Nos. 99 and 100 at Village Isasani and the house property were joint family properties since the same was admitted by the Defendants. In so far as the properties claimed under the counter claim and in so far the plea of res-judicata which was based on a judgment in Civil Suit No. 24/1969, it is contended that the learned Trial Court was without expressing any reasons by only recording submissions from Paragraph Nos. 10 to 17, concluded that the judgment passed in the Civil Suit and confirmed in the Appeal operate as res-judicata. Thereafter, the learned Trial Court framed issues from Paragraph No. 19 onwards till Paragraph No. 20 and again reproduced submissions. Ultimately only by single Paragraph i.e. Paragraph No. 21 concluded that the counter claim deserves to be allowed. The learned Trial Court answered by a single Paragraph without considering any submissions or even without considering how the earlier judgment operate as res-judicata. Unless pleadings in the earlier Suit and issues involved were not come before the court, it cannot be said that it is hit by the principle of res-judicata. 22. The learned Trial Court answered by a single Paragraph without considering any submissions or even without considering how the earlier judgment operate as res-judicata. Unless pleadings in the earlier Suit and issues involved were not come before the court, it cannot be said that it is hit by the principle of res-judicata. 22. Learned Counsel for the Respondent No. 1 vehemently submitted that so far the question of res-judicata is concerned, the findings of the First Appellate Court on the point of res-judicata are not at all perverse, inasmuch as, while considering the issue of res-judicata, as already pointed out by compilation of judgments by the Respondent No. 1, the first step is to consider a plea of res-judicata and for the person raising it to establish the said plea is to firstly file the copy of the Plaint, then the evidence and finally the judgment. It is submitted that though the Defendant No. 1 has relied upon only the judgment in Civil Suit No. 24/1969 so also the judgment in Appeal, however, the copy of the Plaint which is the first and foremost necessary document to apply principle of res-judicata is not filed on record. In this admitted position, the only point is that plea of res-judicata is sought to be sustained on the basis of the finding of fact contained in the judgment of the learned Trial Court as well as the Appellate Court. 23. Learned Counsel for the Respondent No. 1 in support of his proposition that for establishing a plea of res-judicata, the person raising a plea must necessarily establish that the litigating party are the same, that the subject matter of the Suit must be identical, that the matter must be finally decided between the parties and that the Suit must be decided by a Court of competent jurisdiction relied on various judgments. 24. Common principle that emerges is that, the safest method and the most appropriate method is to first place on record before the Court, the Suit, the pleadings and lastly the judgment which is sought to be pressed into service attracting the bar. 24. Common principle that emerges is that, the safest method and the most appropriate method is to first place on record before the Court, the Suit, the pleadings and lastly the judgment which is sought to be pressed into service attracting the bar. In view of the judgments of the Hon’ble Apex Court, it cannot be sustained in the absence of the Plaint itself being before the Court, inasmuch as, the Hon’ble Apex Court has held that reducing factual inferences from the judgment is an unsafe method to attract the plea of res-judicata. 25. In view of the legal position, in my considered opinion, for want of Plaint and pleadings, it would unsafe to hold that the Suit is hit by principle of res-judicata. Moreover, suit was not for partition and separate possession, all properties were not included nor parties are same. 26. The partition of all the fields and house properties were not effected amongst the co-owners. There was a judgment placed on record in Civil Suit No. 24/1969 and Civil Appeal No. 429/1984. Civil Suit No. 24/1969 was filed for ejectment and possession by Kashinath against his step brother Dajiba Kantode and his brother on the ground that his tenant Kisan Laxman was forcibly dispossessed. It was observed in the said Suit that the Plaintiff has failed to prove the partition and ultimately the Suit came to be dismissed though it was house property only and not fields, therefore, the judgment and decree would not operate as res-judicata. In the said Suit, in the house allotted (whether by way of partition or otherwise) to the Plaintiff Kashinath, he inducted a Tenant Kisan who was alleged to be forcibly evicted, therefore, the possession was claimed. There was no claim of partition and separate possession much less of entire properties of Kantode family. 27. The learned Appellate Court rightly appreciated that subject matter and parties being not same, the question of principles of res-judicata will not be applicable. There was no point for consideration whether there was partial partition of properties of Kantode family more specifically amongst the heirs of Raghunath Kantode and therefore the judgment and decree passed in that Suit would not operate as res-judicata. 28. There was no point for consideration whether there was partial partition of properties of Kantode family more specifically amongst the heirs of Raghunath Kantode and therefore the judgment and decree passed in that Suit would not operate as res-judicata. 28. Learned Counsel for appellant relied on Jamia Masjid vs. K.V. Rudrappa, 2022 (9) SCC 225 and Samir Kumar Majumder vs. The Union of India, 2023 SCC Online (SC) 1182, in support of his contention that even if copy of plant is not placed on record judgment can be seen to apply principles of res-judicata. However, in my considered opinion, for that purpose if copy of plaint could not be made available however facts and pleadings of both the parties are required to be discussed elaborately in judgment. 29. Learned Counsel for appellant in support of his contention relied on V. Rajeshwari vs. T.C. Sarvana Bhawa, 2004 (1) SCC 551 that even if copy of judgment in previous suit is sufficient to take proof of plea of res-judicata. However, in the said judgment itself it is made clear that copy of judgment only can be looked into for applying principles of plea of res-judicata, if judgment contains exhaustive and in requisite details the statement of pleadings and issues which may be taken as enough proof. The basic method to decide the question of res-judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res-judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. 30. In Jamia Masjid vs. K.V. Rudrappa, 2022 (9) SCC 225 , the Hon’ble Apex Court laid down certain ingredients to attract the principle of res-judicata in Para-18 which reads as under: “18. In order to attract the principles of res-judicata, the following ingredients must be fulfilled: (i) The matter must have been directly and substantially in issue in the former suit. (ii) The matter must be heard and finally decided by the Court in the former suit. (iii) The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title. (ii) The matter must be heard and finally decided by the Court in the former suit. (iii) The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title. (iv) The Court in which the former suit was instituted is competent to try the subsequent suit or the suit in which such issue has been subsequently raised.” 31. The similar is the ratio laid down in Syed Mohd. Salie Labbai (Dead) by LRs. and Others vs. Mohd. Hanifa (Dead) by LRs. and Others, relied by learned Counsel for respondent. 32. Learned Counsel for respondent also relied on Srihari Hanumandas Totala vs. Hemant Vithal Kamat and Others, (2021) 9 SCC 99 , the ratio laid down in the said matter is different than the point involved in the present matter. It is held in Totalas matter by the Hon’ble Apex Court that plaint cannot be rejected on the applicability of bar of res judicata under Order 7, Rule 11. The same can only be determine upon trial of the suit as only the averments in the plaint itself may be considered at this stage. As such ratio laid down is not applicable in the present set of facts. 33. In view of above discussion and in absence of any copy of plaint, it is unsafe to hold that the subsequent suit is barred by principle of res judicata. Moreover, from the copy of judgment it can be seen that the suit was for recovery of possession, it was not for partition. It appears that from the judgment, it was in respect of tenanted property. Accordingly, I answer substantial question of law No. (iii) in the negative. 34. One of the ground raised by the appellant that learned Courts below failed to appreciate that appellant was never refused to pay the court fee, in fact he has applied for grant of permission to pay the court fee. If Exh.140 is perused, there is application whereon other side to say was ordered. Accordingly, say by Counsel for plaintiff was obtained. It appears that there was an order saying “granted.” However, it appears that it is scored out. It is not made clear, that whether the said application was allowed or rejected or the said application remained as it is without any order. 35. Accordingly, say by Counsel for plaintiff was obtained. It appears that there was an order saying “granted.” However, it appears that it is scored out. It is not made clear, that whether the said application was allowed or rejected or the said application remained as it is without any order. 35. Thereafter there was objection of maintainability of cross-objection which also came to be decided vide order dated 02/03/1991. At that time no objection about court fee was raised. Though it appears that earlier court ordered “granted.” However, the said order appears to be scored out and no further orders were passed on the said application. 36. As it appear in appeal also the appellant applied for affixing court fee on counter claim vide application Exh.63. There was an order of the Court dated 19/03/2005, below Exh.63 that “this application, if necessary would be accepted along with final hearing and decision of the appeal.” Along with this application, applicant i.e. appellant deposited court fee of Rs. 113/-. There is no order passed by the Appellate Court. Thereafter, even at the time of final hearing, nowhere there is an order of rejection of the said application for grant of permission though court fee is already deposited on record along with Exh.63 on 19/03/2005. 37. The learned Counsel for the appellant relied on citations Tajender Singh Gyhambhir vs. Gurpreet Singh, 2014 (10) SCC 702 , Anil Kumar Sahney vs. Satish Kumar, 1980 (1) SCC 615 , Lalji Dharamsey vs. Bhagwandas, 1981 Mh. L.J. 573, Raj Kumar vs. Amar Singh, AIR 1981 P&H 1 (Full Bench) and Mannan Lal vs. Mst. Chhotaka Bibi, 1970 (1) SCC 769 , in support of his contention that deficit court fees in suit or counter claim whatsoever can be paid even at the appellate stage. In Tajendar Singh Ghambhir (supra), it is held by the Hon’ble Apex Court that power of Appellate Court is co extensive with that of Trial Court. Appellate Court in the interest of justice can act of that which could be done by the Trial Court in suit proceedings. Appeal is continuation of the suit and therefore, what could be done by the Trial Court in proceedings of the suit can always be done by the Appellate Court in the interest of justice. In the present matter, there was application for grant of permission to deposit court fee before Trial Court. Appeal is continuation of the suit and therefore, what could be done by the Trial Court in proceedings of the suit can always be done by the Appellate Court in the interest of justice. In the present matter, there was application for grant of permission to deposit court fee before Trial Court. However, no order came to be passed thereon. Therefore, application was made in appeal along with necessary court fee. However, it appears that no orders were passed and the then Presiding Judge kept his application pending to be heard along with final hearing and decision on merit of the appeal. However, no order passed in appeal on this application. 38. The learned Counsel for respondent relied on Nawab A. Nawab John and Others vs. V.N. Subramanyam, 2012 (7) SCC 738 , wherein the Hon’ble Apex Court held that power of the Court to permit payment of court fee subsequently and the extension of time is permissible under Section 149 of the Civil Procedure Code. However, it has been categorically held that language of Section 149 provides that when a plaint is presented to a Court without proper payment of court fees, undoubtedly, the Court has authority to call upon the plaintiff to make the payment of the necessary court fee. Such authority of the Court can be exercised at any stage of the suit. 39. Hon’ble Apex Court, further held that while considering the legal character of Section 149 the provision confers authority on the Court to call upon the plaintiff to make the payment of the court fee which is found to be deficit. However jurisdiction under Section 149 is discretionary in nature which has to be exercised in accordance with settled position of law and it must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation. In my considered opinion, learned Appellate Court failed to consider this fact that court fee was deposited along with application itself. Only question of grant of permission was there. However, no orders were passed on the said application, neither Trial Court nor Appellate Court granted permission to deposit the court fee nor rejected the same. 40. In my considered opinion, learned Appellate Court failed to consider this fact that court fee was deposited along with application itself. Only question of grant of permission was there. However, no orders were passed on the said application, neither Trial Court nor Appellate Court granted permission to deposit the court fee nor rejected the same. 40. Learned Counsel for respondent also relied on Scheduled Caste Cooperative Land Owing Society Limited vs. Union of India, 1991 (1) SCC 174 , wherein, the Hon’ble Apex Court held that after a lapse of about 6 years, the practice of payment of court fees is permitted, it would encourage the litigants to pay court fees belatedly in hope that as and when valuation is determined in appeal, the jurisdiction of the Court can be invoked under Section 151 and the benefit of enhanced compensation can be reaped by making good the deficit court fee. However, in my considered opinion, this situation would not apply in view of peculiar facts involved in the matter. 41. In my considered opinion, the issue raised of non payment of court fee is not proper in fact. There was no order passed by either Trial Court or Appellate Court on the application for grant of permission by the appellant to deposit the court fee on counter claim. If these exhibits are perused, there is no specific order of rejecting the application for grant of permission to deposit court fee, in appeal in 2005 itself along with application the court fees was deposited. As such, I am of the considered opinion that this issue is not properly dealt with by the learned Appellate Court and counter claim ought not to have been dismissed on the ground of non payment of Court fee. Though, it was written as “granted” who has scored it and why it was scored is not clear from the Exh.140 and though court fee was deposited along with the application in appeal, it was not considered by the Appellate Court. Accordingly, the substantial question No. 1 is answered in the negative for the forgoing reasons. 42. The learned Counsel for respondent submitted that instant matter was for partition of two properties belonging to one Raghunath bearing Field Survey Nos. 99 and 100 situated at Isasani. The said Suit Property was the only property that was inherited by Raghunath which remained to be partitioned between the parties. 42. The learned Counsel for respondent submitted that instant matter was for partition of two properties belonging to one Raghunath bearing Field Survey Nos. 99 and 100 situated at Isasani. The said Suit Property was the only property that was inherited by Raghunath which remained to be partitioned between the parties. Previously between the sons of Raghunath from his first and second wife, a partition had taken place and the parties were occupying the properties which had come in their possession. The entries in the Revenue Records also demonstrated the same. It appears from the written statement that the Defendant Nos. 2A and 2B legal representative No. 2 supported the Suit. 43. The learned Counsel for appellant relied on Babulal Shukla vs. Jeshankar Shukla, AIR 1972 Calcutta 494 in support of his contention that legal representatives of original defendant cannot take different stand than taken by original defendant. In the above said matter the High Court of Calcutta held in paragraph No. 5 which reads as under: “5........A person substituted as legal representative of a deceased party must adopt the pleadings filed by the deceased party. He cannot raise a new point inconsistent with the pleadings of the deceased. The legal representative of a deceased cannot set up his own claims or rights in the case though he may do so in any other proceedings.” 44. Learned Appellate Court while concluding that there was partition in joint Hindu family property mainly relied on Exh.112, 113, 123, 124 and 125. Learned Appellate Court also relied on mortgage deed executed by Dajiba. 45. It is the contention of the Appellants that the learned Trial Court in its judgment dated 01/10/1996 in Civil Suit No. 859/1977, after elaborately considering the documents and the oral evidence, has held that the Plaintiff could not prove the factum of partition. Whereas the learned First Appellate Court in its judgment dated 28/03/2007 has held that the Plaintiff Kashinath has proved the partition of the joint family ancestral property. The learned First Appellate Court as regards partition is based upon entries in Revenue Records at Exhibits 112, 113, 123 and 126. Whereas the learned First Appellate Court in its judgment dated 28/03/2007 has held that the Plaintiff Kashinath has proved the partition of the joint family ancestral property. The learned First Appellate Court as regards partition is based upon entries in Revenue Records at Exhibits 112, 113, 123 and 126. Whereas if all the Exhibits are seen and the entries are carefully read, there is nothing about either the partition which the Plaintiffs allege to have taken place prior to 1935 or 30 years prior to the death of Raghunath as pleaded by the Plaintiff in his Plaint. The alleged partition can not be made out from the above Revenue Records or Revenue entries. Hence, the finding of the First Appellate Court as regards to alleged partition between the five brothers namely Dajiba, Bajirao from first wife and Kashinath, Sadashiv and Manikrao from second wife is perverse. 46. Learned Counsel for the Appellants vehemently submitted that there is not a single document or revenue entry showing that there was partition between five brothers namely Dajiba Bajirao, Kashinath, Sadashiv and Manikrao. There is not a single revenue entry or any sort of document since 1947 till filing of the Suit or prior to that. 47. Learned Counsel for the Appellants vehemently submitted that if deposition of Purushottam is perused, he says that partition took place before 1930. Whereas, in the initial pleadings, it is mentioned that the partition took place 30 years back. By calculation, the date may be in the year 1947. Then by way of amended pleading, it is pleaded that the partition took place prior to 1935 and the third version says that the partition took place before 1930. Therefore, there is no cogent and reliable evidence as regards the partition of the joint family ancestral property. It is submitted that the entire evidence of Purushottam Kashinath Kantode is completely hearsay. He has no personal knowledge about any partition. In the cross-examination, he states that he has seen revenue papers regarding mutation entries of 1930 and before 1930 but no document to that effect placed on record. In his entire cross, he has mostly answered about his unawareness about the facts. 48. He has no personal knowledge about any partition. In the cross-examination, he states that he has seen revenue papers regarding mutation entries of 1930 and before 1930 but no document to that effect placed on record. In his entire cross, he has mostly answered about his unawareness about the facts. 48. Learned Counsel for the Appellants relied on Bhagwat Prasad vs. Dulhin Rameshwari, AIR 1952 SC 72 and A. Raghavamma vs. A. Chenchamma, AIR 1964 SC 136 in support of his contention that strict proof of partition is required, severance of status is different and partition by metes and bounds is different, burden of proof is on the person who propagates partition. In Hindu Law, there is a presumption of jointness of hindu joint family and jointness of the hindu joint family member. He also relied on Raghunath Laxman Wani vs. State of Maharashtra, AIR 1971 SC 2137 on similar proposition of law. 49. The First Appellate Court recorded its finding that there was partition between legal heirs of original owner Kashinath Kantode i.e. Raghunath, Shiva and Zamya. So far as Shiva is concerned, he was no more alive as well as his sons were also not alive. Therefore, there was partition between Raghunath and Zamya. There is no dispute over first partition. The learned Judge on the basis further relied on Exhs.112 and 113 which are Bandobast Khasra of field Survey Nos. 58 and 59, 347/46 and 348/48 situated at Mouza Shivangaon, which were recorded in the name of Raghunath. If Exh.123, 124 and 125 are perused though record of rights of field survey No. 267, which shows partition in the 1970 it was amongst Manikrao Raghunath Kantode and Kashinath Raghunath Kantode. However, it needs to be noted that Kashinath and Manikrao, both were sons of Raghunath from wife Radhabai. The survey numbers shown in 59/4, 61/1, 61/3, 106/1, 347/46 and 348/48, it appears that name of Manikrao recorded against these fields. So far as Exh.126 is concerned, it is in respect of field Khasra Nos. 109/2 and 110/1 and name of Kashinath Raghunath Kantode is appearing against the said field. It appears that this property also had fallen in the share of Kashinath as there was partition between Kashinath and Manikrao. So far as Exh.126 is concerned, it is in respect of field Khasra Nos. 109/2 and 110/1 and name of Kashinath Raghunath Kantode is appearing against the said field. It appears that this property also had fallen in the share of Kashinath as there was partition between Kashinath and Manikrao. So far as Exh.127 is concerned, it is 7/12 extract in respect of Khasra No. 106/1 recorded in the name of Madhukar S/o Manikrao and his wife Lakshmi wd/o Manikrao. Exh.131 is the 7/12 extract recorded in the name of Zadba Zibal, both sons of Zamya Kantode of Survey No. 98. If survey numbers are perused, there is no reference of survey no. 99 and 100 which admittedly situated at Isasani. Thus without there being partition between all the coparcener it cannot be said to be valid partition of ancestral property. 50. Moreover, partition is shown between Kashinath and Manik whereas Raghunath was having two children from Gajrabai namely Dajiba and Bajirao and three children from Radhabai namely Kashinath, Sadashiv and Manikrao. Bajirao died issue less, Sadashiv also died issue less. As such, Dajiba, Kashinath and Manikrao are the sons of Raghunath. As such, even if, there would be a partition, it would have to be between three brothers i.e. Dajiba, Kashinath and Manikrao. As such, there is no evidence on record to conclude that there was partition between legal heirs of Raghunath. There is no document or evidence came on record to show that there was any partition between either amongst legal representatives of Raghunath prior to 30 years as alleged or in 1970 between brothers Dajiba, kashinath and Manikrao. All khasra numbers are not tallied with the ancestral properties. The alleged partition of 1970 never brought before the Court. Revenue entries though placed on record, name of Dajiba is nowhere reflecting. 51. So far as Mortgage is concerned, it is the case of the plaintiff that share of Dajiba purchased in auction by Kashinath and Zadba. There is no document on record that Kashinath and Zadba purchased the property in auction nor there is any revenue entry to that effect. If document mortgage deed is perused word “absolute occupancy” is not used against the name of Dajiba Kantode, which means that he was not absolute occupant of the property but obtained a loan for purchase of bullocks, on the basis of his share in the property. If document mortgage deed is perused word “absolute occupancy” is not used against the name of Dajiba Kantode, which means that he was not absolute occupant of the property but obtained a loan for purchase of bullocks, on the basis of his share in the property. In these circumstances, relying on the mortgage deed, one cannot arrive at a conclusion of partition by meets and bounds between the brothers. 52. The learned Counsel for appellant drawn my attention to paragraph No. 3 of the plaint, wherein it is written as under “in view of partition of agricultural property at Shivangaon the name of each share holder i.e. plaintiff defendant No. 6 Manikrao Dajiba deceased father defendant Nos. 1 to 5 were recorded in the revenue and Khasra papers.” However there is not a single revenue record or revenue entry in which the partition between these 5 brothers namely Bajirao, Kashinath, Sadashiv and Manik are recorded and it is placed on record. What is deposed by Purushottam is that, Raghunath was alive and he himself partitioned the properties among these 5 brothers. However, there is not a single revenue entries which would reflect the name of Raghunath or these 5 brothers. 53. The learned Appellate Court also relied on Mortgage Deed to arrived at conclusion that there was partition. However, as discussed earlier, in mortgage deed Dajiba was not shown as absolute occupant. The said mortgage deed was executed by six persons. They are not related to each other. We are only concern with Dajiba who is son of Raghunath. In view on the basis of submission made by plaintiff that he has purchased the property from the Government in Government auction without there being any supporting documents, the learned Appellate Court is committed illegality in not considering that being Government proceeding their ought to have some documents to show that there was auction or loan amount was repaid by Kashinath and Zamya. Thus, only on oral statement made by plaintiff, the learned Appellate Court come to the conclusion that there was partition between the brothers. As such, the said documents are of no use to arrive at a conclusion that there was partition. At least there has to be some revenue entries with regard to the said property. Thus, only on oral statement made by plaintiff, the learned Appellate Court come to the conclusion that there was partition between the brothers. As such, the said documents are of no use to arrive at a conclusion that there was partition. At least there has to be some revenue entries with regard to the said property. Though, it is claimed by the plaintiff that there was a partition long back prior to 40 years, however not a single revenue entry or any document placed on record from 1947 to 1977. As such, what is held by Trial Court that property was not partitioned appears to be correct. Admittedly, mortgage deed was of 1932, if partition is effected in 1947 as claimed by the plaintiff, there would not be any possibility of separate share when the mortgage was executed. Moreover, it was for a small amount. 54. The learned Appellate Court on the basis of question put to the plaintiff that whether there was distribution of cattle concluded that there was partition amongst the brothers. In my considered opinion, only on the basis of question regarding distribution of cattle, one cannot come to the conclusion that factum of partition is admitted. 55. In Bhagwat Prasad vs. Dulhin Rameshwari, AIR 1952 SC 72 , relied on by learned Counsel for appellant, the Hon’ble Apex Court held as under: “The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but.........where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.....” 56. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.....” 56. Whether there is a partition in a Hindu joint family is, therefore, a question of fact; notwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share; but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. 57. There is no dispute over the proposition laid down by the Hon’ble Apex Court in the above referred citations. Ultimately, this issue is required to be decided on facts and evidence. 58. The Hon’ble Apex Court in Bhagwant vs. Digambar, AIR 1986 SC 79 , held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned among the co-sharer. By an unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. 59. Thus, First Appellate Court erroneously held that counter claim was not sustainable also on merits. The learned First Appellate Court recorded its perverse finding only on the basis of some answers to some suggestions instead of taking overall conspectus of entire evidence into consideration. As such, finding recorded by First Appellate Court for forgoing reasons is totally perverse that there was partition by meets and bounds between the family members of the appellant and the respondents herein during the period of 30 to 35 years. 60. I further held for the forgoing reasons that the finding based on Exhs.112, 113, 123, 124, 125 and 126 for coming to the conclusion that there was prior partition amongst the entire family members is totally perverse. As such, substantial question of law Nos. 2, 4, 5 and 6, is answered in the affirmative and it is held that totally perverse findings recorded by the First Appellate Court. As such, substantial question of law Nos. 2, 4, 5 and 6, is answered in the affirmative and it is held that totally perverse findings recorded by the First Appellate Court. Accordingly, I proceed to pass the following order: ORDER: (i) Second appeal is hereby allowed. (ii) The judgment and decree passed by 1st Ad-hoc Additional District Judge, Nagpur in Regular Civil Appeal No. 4/1997 dated 23/03/2007, is hereby quashed and set aside. (iii) Judgment and Decree passed by VIIth Joint Civil Judge Junior Division, Nagpur, in Regular Civil Suit No. 859/1977 dated 01/10/1996, is hereby, confirmed. (iv) Decree be drawn up accordingly. No orders as to costs.