JUDGMENT
Monoranjan Mallick, J.
1. This second appeal is against the judgment and decree passed by the learned Additional District Judge, 2nd Court, Howrah, in Title Appeal No. 13/74 reversing those of the learned Subordinate Judge, 3rd Court, Howrah, in Title Suit No. 9/70.
2. The facts, which are relevant for deciding this second appeal, may be briefly stated as follows :
The plaintiffs-respondents have filed this Title Suit No. 9/70 praying for partition of the joint properties impleading the co-sharers Panchanan Patra and others and the transferees of the co-sharers. Before the learned trial Judge the defendants Nos. 5-8 contested the suit by filing written-statement. They took the plea that there was a previous partition between the parties and as a result thereof, they purchased the portion allotted to the co-sharers by virtue of such previous partition and the plaintiffs’ suit for partition is, therefore, not maintainable.
3. The learned Subordinate Judge upheld the contention of the contesting defendants and dismissed the suit for partition as not maintainable accepting the contention of the defendants that there was a previous partition.
4. Being aggrieved, the plaintiffs-respondents filed an appeal before the teamed District Judge, Howrah, and the learned Addl. District Judge, 2nd Court, Howrah, in Title Appeal No. 13/74 reversed the said finding of the trial Judge on coming to the finding that the onus is upon the defendant to prove that there was a previous partition, that they failed to discharge that onus, that on the sides of the plaintiffs-respondents there were sufficient evidence to show that the parties were possessing the property exclusively by amicable arrangement and that there was no previous partition by metes and bounds.
5. Being aggrieved, defendants Nos. 7 and 8 have preferred this second appeal. Even though notices have been duly served on the respondents, none of the respondents has appeared to contest this appeal.
6. Mr. Basu appearing on behalf of the appellants has assailed the judgment of the appellate court below on the ground that the learned Addl. District Judge failed to consider the admission of the plaintiff-respondent No. 3 in her sale deed Ext. A/4 by which a portion of the property under partition was sold to the defendants Nos. 9 and 10 in which she has clearly admitted that she was selling the property which she had got by virtue of partition with her co-sharer Panchanan Patra. He, therefore, submits that the finding of the learned appellate Julge being a perverse finding, is required to be interfered with in this second appeal.
7. We have carefully considered the submission made by Mr. Basu. We have also carefully considered the judgment of the learned Addl. District Judge.
8. We find that the learned Addl. District Judge rightly observed that when the defendants-appellants raised the plea of previous partition, the onus is upon them to prove it. The learned Addl. District Judge has further observed that even though in the written-statement the plea of previous partition was taken, no particulars as regards the time and place of partion had been given in the written-statement. He has also observed that in the oral evidence also the plea regarding the previous partition suffered from vagueness. The learned Addl. District Judge has also observed that as against the above state of affairs there were sufficient evidence adduced on the side of the plaintiffs to show that there was no actual partition between the co-sharers of the plaintiffs prior to the date on which the suit for partition was filed. The learned Addl. District Judge has also observed that none of the co-sharers, who has been impleaded as defendant, has come forward to contest the suit of the plaintiffs-respondents on the ground that there was a previous partition. The learned Addl. District Judge has also considered the evidence adduced on the side of the plaintiffs-both oral and documentary-and has held that one of the brothers of Satish Ch. Patra to whom the suit property originally belonged has also adduced evidence on behalf of the plaintiffs to prove that there was no previous partition of the joint property inherited by the plaintiffs and the defendants co-sharers previous to the filing of the suit. The plaintiff No. 3 has in her evidence also stated that the parties were possessing the properties exclusively by amicable arrangement. The learned trial Judge even in spite of those clear preponderant evidence, seems to have relied upon the admission of the plaintiff No. 3 in Ext.A/4 to come to the finding that, in view of the above admission of the plaintiff No. 3 in the document, it must be held that there was a previous partition. But that was merely an admission and the plaintiff No. 3 could explain the said admission by leading evidence before the learned trial Judge. In the evidence before the learned trial Judge her categorical case was that the co-sharers were possessing the portions of the joint property exclusively by amicable arrangement. It is now well settled that without resorting to partition the co-sharers may possess portions of the property exclusively by amicable partition and that is to be distinguished from a partition by metes and bounds.”
9. Moreover, even the, sale deed which Panchanan executed in favour of the present appellants did not specifically recite that he was selling the said property acquired by him by any previous partition. None of the other sale deeds, as observed by the learned Addl. District Judge, recites that there was any previous partition. Therefore, only because in Ext.A/4 the plaintiff made an admission that the property which she was selling to the defendants Nos. 9 and 10 was acquired by her by partition with her co-sharers, would not in the light of other preponderant evidence to the contrary justify the court to come to the finding that there was a previous partition. It is also well settled that when the properties are admittedly joint family properties, then the burden to prove that there was a previous partition is upon the party who alleges it. Mr. Basu refers before us the Division Bench decision of the Patna High Court in (Ramnagina Shah and Ors. v. Harihar Shah and Ors.) where the Division Bench has held that when a partition is proved or admitted, the presumption is that all the properties were divided and a person alleging that family property in exclusive possession of one of the members after the partition is joint and is liable to be partitioned, has to prove his case. But this is not the case here. Here the plaintiff has alleged that none of the properties has been partitioned and that is why the suit for partition has been filed. It is true that there was some admission of the plaintiff No. 3 in Ext.A/4 that at least the property, which was sold by her, was partitioned with her co-sharers. But this is not the present case of the plaintiff before the learned trial Judge that even the said property was previously partitioned with her co-sharers. Her clear case is that all the properties still remain joint. But as the first appellate court accepted the case of the plaintiff and has held that the onus of previous partition being upon the defendants and that not having been discharged, the suit for partition is quite maintainable, we are unable to disagree, with the above finding of the learned Addl. District Judge. Mr. Basu has also referred to 32 CWN 170 (Abdul Wahab v. Tilakdhari Lal and Ors.) which is a Privy Council decision. In that decision the Privy Council has held that on considering the evidence that appeared that the amicable arrangement by which the parties were possessing the properties, was in pursuance of an amicable partition and a formal partition of the whole estate by a civil court was, therefore, barred.
10. There is no quarrel with the above proposition of law that if there is a previous partition between the co-sharers by provided arrangement and even orally and if that is proved, then a suit for partition would definitely fail. But in this particular case on considering the evidence on record the learned Addl. District Judge came to the finding of fact that there was no previous partition.
11. In this second appeal when the finding of fact arrived at by the 1st appellate court is based on evidence, then we in second appeal cannot interfere with it because the High Court is not empowered to interfere with a finding of fact in a second appeal on the ground of its being erroneous unless there is a substantial error or defect in the procedure prescribed by law which may have produced error or defect in the decision of the case upon merits. That is the decision of the Supreme Court in K. V. Sabbaraju v. C. Sabbaraju, . In Ram Chandra v. Ramalingam, , the Supreme Court has observed that the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however, the said conclusion may appear to be to the High Court because, however, gross or inexcusable error may seem to be, there is no jurisdiction Under Section 100 of the Code of Civil Procedure to correct that error.
12. However, in this particular case we are convinced on considering the judgment of the appellate Judge that he appreciated the evidence properly and came to the correct finding of. fact that the defendants-appellants have failed to prove that there was a previous partition by leading satisfactory evidence and the plaintiffs on the contrary have led sufficient evidence to show that the parties were possessing some of the joint properties exclusively by way of amicable arrangement which did not amount to partition by metes and bounds.
13. In the result, we are unable to interfere with the judgment passed by the learned appellate court. The appeal, therefore, fails and is dismissed without any order as to costs.
14. No formal decree need be prepared but the records be sent down forthwith.
Manabendra Nath Roy, J.
15. I agree.
