JUDGMENT : PRADEEP KUMARSRIVASTAVA , J. 1. Instant Second Appeal has been preferred being aggrieved and dissatisfied with the judgment passed by District Judge, East Singhbhum, Jamshedpur dated 28.02.2004 passed in Title Appeal No. 20/1998 whereby and whereunder the judgment and decree passed by learned Trial Court (Civil Judge, Junior Division), Ghatshila in Title Suit No. 23/1994 dismissing the suit of the plaintiff has been reversed and set aside and appeal filed by the plaintiff/appellant was allowed. 2. Factual matrix giving rise to this appeal is that the respondent/plaintiff brought a suit for declaration of their right, title and interest and recovery of possession of 1 decimal land with house standing thereon pertaining to plot No. 27, Khata No. 34 as well as 21 2/3 Acres of land of Khata No. 34 of different plot situated in Amlagora Mauza, P.S. Chakulia, Dist. East Singhbhum. 3. The case of the plaintiff is that plaintiff’s father has three brothers namely Radha Mahto, Pran @ Chuna Ram Mahto and Kanu Mahto forming a Hindu Joint Family and they had possession of three houses and agricultural land jointly in the revenue records of right published in the year 1964 but after the publication of the record of right, the aforesaid three brothers orally partitioned by Metes and Bounds of their houses and agricultural land. According to said oral partition, eastern portion of the house standing on Plot No. 27 area 21 2/3 decimal was allotted to Kanu Mahto. After his death, his widow Ahilia and daughter Sajni came into possession of the same who have sold 21 2/3 decimal of land as well as eastern portion of the house standing over the said 1 decimal land to the plaintiff vide registered sale deed dated 12.03.1985 for valuable consideration and put him in peaceful possession. The plaintiff got mutated his name in respect of aforesaid purchased land. The plaintiff demolished old structure of house standing on plot No. 27 and constructed a new house in the year 1986 and allowed his father (defendant No. 1) to remain in possession as a care taker as the plaintiff used to live in other places. It is further alleged that the father of the plaintiff (defendant No. 1) without consent of the plaintiff allowed his brother (defendant No. 2) to occupy the said house. It is further alleged that the father of the plaintiff (defendant No. 1) without consent of the plaintiff allowed his brother (defendant No. 2) to occupy the said house. It is further alleged that in the first week of May, 1994, the plaintiff returned to his village and saw his brother (defendant No. 2) and his Bhabhi are occupying the house constructed by him. Hence, the plaintiff requested to vacate the same but they did not pay any heed. Then, the plaintiff also requested his father (defendant No. 1) to help in this matter but instead of helping the plaintiff, he took side of defendant No. 2 and defendant No. 3. Hence, this suit. 4. Defendant No. 1 and 2 appeared and filed their joint written statement emphatically denying any oral partition by Metes and Bounds in between the three brothers namely Radha Mahto, Pran @ Chuna Ram Mahto and Kanu Mahto in respect of suit properties. Therefore, no agricultural land pertaining to Khata No. 34 and part of the house standing over Plot No. 27 was ever allotted to Kanu Mahto who never came into exclusive possession of the same. As a matter of fact, the land and houses were always joint property and the parties are possessing the same as per their convenience and, if any, sale deed is purported to be executed by wife of Kanu Mahto and his daughter in respect of suit land, the same is absolutely illegal, invalid and never operated. The story propounded by the plaintiff that he constructed a new house and allowed his father to occupy, who in turn permitted his brother and sister-in-law to live therein, or any construction of new house after demolishing the old structure of the house by the plaintiff are palpably false and concocted story. The plaintiff has never acquired the suit property nor got exclusive possession over the same. Hence, plaintiff has no right, title and interest and possession over the suit property and the suit filed by the plaintiff is liable to be dismissed. 5. The proforma defendant (Defendant No. 4) also appeared and filed written statement admitting the claim of the plaintiff thereafter left pairvi and proceeded ex-parte. 6. On the basis of pleadings of the parties, following issues were settled by the learned Trial Court for adjudication: - (i) Whether the suit is maintainable in law and facts? 5. The proforma defendant (Defendant No. 4) also appeared and filed written statement admitting the claim of the plaintiff thereafter left pairvi and proceeded ex-parte. 6. On the basis of pleadings of the parties, following issues were settled by the learned Trial Court for adjudication: - (i) Whether the suit is maintainable in law and facts? (ii) Whether the suit is barred under the provisions of limitation Act? (iii) Whether the suit is barred under the principle of estopple, waiver and acquiescence? (iv) Whether the suit is bad for non-joinder and mis-joinder of the parties? (v) Whether the suit is properly valued and court fee paid therein sufficient? (vi) Whether the plaintiff has any exclusive right, title and interest over the suit property and entitled to get possession by vacating the defendant thereof? (vii) Whether the plaintiff is entitled for any other relief under any other law? 7. The learned trial court held that the defendant No. 1 along with defendant No. 2 and plaintiff have constituted joint family and coparceners. Any property acquired by coparceners in the jointness, no coparceners can claim over the property as their absolute properties. It was held that there was no partition by Metes and Bounds between the defendant No. 1 and his sons along with plaintiff. The suit property recorded under Khata No. 34 in the name of plaintiff’s father and his two uncles. Therefore, plaintiff has not acquired any exclusive title and possession through the registered sale deed as alleged. It is also proved by defendant No. 2 in his oral evidence that the bricks were purchased by the plaintiff but payment of labour cost and other materials were purchased by defendant No. 1 for construction of new house over plot No. 27 hence this property is a joint family property and not exclusive property of the plaintiff. Similarly, no partition has been held in respect of agricultural properties pertaining to Khata No. 34. The plaintiff thus has no exclusive title over the suit land as claimed rather he has right as a co-sharer or a coparcener for joint possession. Therefore, plaintiff was not entitled for the relief as claimed for and dismissed the suit. 8. Similarly, no partition has been held in respect of agricultural properties pertaining to Khata No. 34. The plaintiff thus has no exclusive title over the suit land as claimed rather he has right as a co-sharer or a coparcener for joint possession. Therefore, plaintiff was not entitled for the relief as claimed for and dismissed the suit. 8. The learned first appellate Court differed with the findings recorded by the learned Trial Court and arrived at a conclusion that there had been partition between three brothers by Metes and Bounds hence Ahilya and Sajni, Widow and Daughter of Kanu Mahto had every right to execute the sale deed (Exhibit -1) in favour of the plaintiff with respect to the suit land and consequently the plaintiff derived right, title and interest over the suit property by virtue of aforesaid sale deed. Accordingly, the suit of the plaintiff/respondent was decreed and defendants were directed to give vacant possession of the suit land to the plaintiff within two months from the date of this order, failing which, plaintiff shall be entitled to recover the same through process of law. 9. The instant Second Appeal preferred by the appellant/defendant was admitted vide order dated 15.04.2005 on following substantial question of law “ whether the lower appellate court without coming to a definite finding of the point of time of the partition has erroneously reversed the finding of the learned Trial Court holding previous partition in the family of the parties only on the basis of evidence of separate mess and residences? ”. 10. Pressing the aforesaid substantial question of law, learned counsel for the appellant has submitted that learned appellate Court has failed to meet out the reasons recorded by the learned trial Court while dismissing the suit of the plaintiff. Learned trial Court has specifically held that the suit property was joint property and never partitioned, therefore, sale of the joint property by co-sharer cannot confer title for any specific share on property except through partition. It is further submitted that Exhibit- 3 Khatiyan had also been overlooked which shows that separate possession of separate branches has been shown but plaintiff is in jointness along with three brothers. No partition by Metes and Bounds was ever took place. The onus of proving previous partition was wrongly shifted upon the defendants/appellant. It is further submitted that Exhibit- 3 Khatiyan had also been overlooked which shows that separate possession of separate branches has been shown but plaintiff is in jointness along with three brothers. No partition by Metes and Bounds was ever took place. The onus of proving previous partition was wrongly shifted upon the defendants/appellant. It is settled law that the plaintiff cannot take advantage of weakness of the case of the defendants rather he has to stand at his own leg. It is further submitted that mere separate possession as per convenience in mess, residence and cultivation does not amount to partition by Metes and Bounds. Therefore, any property being sold in jointness cannot give right of exclusive possession over any specific property rather it can be obtained through partition alone claiming partition of the property. Learned counsel for the appellant has placed reliance on reported judgment in Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble & ors., (2009) 10 SCC 654 . Therefore, the impugned judgment and order passed by the learned appellate Court is liable to be set aside and this appeal is fit to be allowed. 11. On the other hand, learned counsel for the respondent/plaintiff has submitted that the learned trial Court has failed to properly appreciate the case of the plaintiff while dismissing the suit but the first appellate Court on the basis of oral as well as documentary evidence adduced by the parties arrived at a definite finding that there was partition between the father and uncles of the plaintiff in respect of agricultural lands and the plaintiff has purchased the suit property through registered sale deed from the share of his uncle executed by their heirs. The learned appellate Court has rightly differed from the findings of learned Trial Court and passed a well-reasoned judgment which does not suffer from any illegality or infirmity calling for any interference. 12. I have gone through the record of the case along with impugned judgment and order passed by learned Trial Court as well as first Appellate Court in the light of contentions advanced by learned counsel for the respective parties. 13. The very suit instituted by the plaintiff/respondent on the basis that his father had three brothers namely Radha Mahto, Pran @ Chuna Ram Mahto and Kanu Mahto who have partitioned their land after publication of record of rights after 1964. 13. The very suit instituted by the plaintiff/respondent on the basis that his father had three brothers namely Radha Mahto, Pran @ Chuna Ram Mahto and Kanu Mahto who have partitioned their land after publication of record of rights after 1964. One of the brothers of plaintiff’s father namely Kanu Mahto died leaving behind his widow Ahilia and a daughter Sajni who inherited the share of Kanu Mahto. The plaintiff has purchased the share of Kanu Mahto from Ahilia and Sajni through registered sale deed. Thereafter, the plaintiff constructed a house and also came into possession of the landed property. According to plaintiff, the permissive possession of aforesaid purchased property was given to his father but without his consent, his father also permitted to live brother of the plaintiff (defendant No. 2) in the suit premises. Neither the learned trial Court nor the learned Appellate Court has framed any issue regarding partition of the ancestral properties among three brothers of plaintiff’s father but for the purpose of deciding the claim of the plaintiff as an exclusive owner of the suit property on the strength of acquisition through registered sale deed entered into question of partition as pleaded by the plaintiff. 14. It further transpires that learned Trial Court found no substantial piece of evidence led by plaintiff showing any partition of the ancestral properties among three brothers of plaintiff’s father. It was also held by learned trial Court that the said Kanu Mahto had two wives, his first wife is also alive namely Putli Devi and Ahilia Devi was his second wife and Sajni is daughter. It was also observed that since the first wife of Kanu Mahto was alive, at the time of second marriage with Ahilia Devi, the second marriage was void ab initio. Therefore, Ahilya Devi could not succeed the properties of Kanu Mahto. In that view of the matter, sale deed executed in favour of the plaintiff excluding the first wife Putli Devi to the extent of her share was not valid. The learned trial Court has also recorded findings that there was no partition of joint family property between the plaintiff along with defendant No. 1 and Defendant No. 2, as such, property, if any, acquired by the plaintiff will be deemed to be joint property of all as a coparcenary property. 15. The learned trial Court has also recorded findings that there was no partition of joint family property between the plaintiff along with defendant No. 1 and Defendant No. 2, as such, property, if any, acquired by the plaintiff will be deemed to be joint property of all as a coparcenary property. 15. Here, it is pertinent to mention the principle of law relating to presumption in connection with Hindu Joint Property. The Hon’ble Apex Court in the case of “ Kesharbai @ Pushpabai Eknathrao Nalawade (Dead) by L.Rs and Anr. Vs. Tarabai Prabhakarrao Nalawade & Ors., (2014) 4 SCC 707 , decided on 14.03.2014 ” has observed that there is a presumption of law that until the contrary is proved, every Hindu family is joint and undivided and all its property is joint. However, this presumption will go off, once a partition (of status or property), whether general or partial, is shown to have taken place in a family. The burden of proof that certain property was not part of the partition would be on the party that alleges the same as a joint property. 16. In the instant case, the learned First appellate Court without recording any findings on the basis of oral as well as documentary evidence led by the plaintiff/respondent that previous partition of the properties by Metes and Bounds was effected between brothers of the plaintiff’s father rather on the basis of conjecture and surmises held previous partition valid and sale deed executed in favour of plaintiff by the heirs of Kanu Mahto is also valid. Therefore, findings recorded by learned First Appellate Court without meeting the reasons assigned by the learned Trial Court on issue No. VI is absolutely perverse and beyond the weight of evidence. Therefore, I find merits in the substantial question of law raised in this appeal. Accordingly, impugned judgement and decree passed by the learned First Appellate Court is set aside and judgment and decree passed by the learned Trial Court is restored and this Second Appeal is allowed on contest but without cost. 17. Pending I.A. if any, stands disposed of. 18. Let a copy of this judgment along with the trial/appellate court record be sent back to the court concerned for information and needful.