1 2025:CGHC:60150 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 489 of 2012 Judgment Reserved on 13.11.2025 Judgment Delivered on 11.12.2025 1 - Murari Lal Gupta, S/o Laxmi Narayan Gupta (Since Deceased ) 1.1 - Smt. Neera Bai, Wd/o Late Murari Lal Gupta, Aged About 45 Years R/o Ashok Nagar, Chantidih, Near Electricity Office, Bilaspur, Police Station Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 1.2 - Anil Kumar Gupta, S/o Late Murari Lal Gupta, Aged About 24 Years R/o Ashok Nagar, Chantidih, Near Electricity Office, Bilaspur, Police Station Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 1.3 - Sunil Kumar Gupta, S/o Late Murari Lal Gupta, Aged About 22 Years R/o Ashok Nagar, Chantidih, Near Electricity Office, Bilaspur, Police Station Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 1.4 - Ku. Sunita Gupta, D/o Late Murari Lal Gupta, Aged About 19 Years R/o Ashok Nagar, Chantidih, Near Electricity Office, Bilaspur, Police Station Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Girdhari Lal S/o Late Laxmi Narayan Gupta (Since Deceased) 2.1 - Smt. Usha Bai Gupta, Wd/o Late Girdhari Lal Gupta, (Since Deceased ) Nil 2.2 - Santosh Kumar Gupta, S/o Late Girdhari Lal Gupta, Aged About 24 Years R/o New Sarkanda, Near Muktidham Chowk, Bilaspur, Police Station Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2.3 - Rajesh Kumar Gupta, S/o Late Girdhari Lal Gupta, Aged About 23 Years R/o New Sarkanda, Near Muktidham Chowk, Bilaspur, Police Station Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2.4 - Smt. Meena Gupta, W/o Rameshwar Prasad Gupta, Aged About 21 Years D/o Late Girdhari Lal Gupta, R/o Kawardha, Police Station Kawardha, District Kabirdham Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh ... Appellants 2 versus 1 - Mus. Deepa Bai, W/o Late Mahavir (Since Deceased) (Deleted) Smt. Bimla Bai, (Dead) Through Lrs., As Per Court Order Dt. 02-07-2021. 1.1 - Bharat Gupta, S/o Late Suresh Gupta, Aged About 35 Years R/o Village Akhrar, Tahsil Lormi, District Mungeli Chhattisgarh., District : Mungeli, Chhattisgarh 1.2 - Manharan Gupta S/o Late Suresh Gupta, Aged About 28 Years R/o Village Akhrar, Tahsil Lormi, District Mungeli Chhattisgarh., District : Mungeli, Chhattisgarh 1.3 - Chameli Bai Gupta D/o Late Suresh Gupta, Aged About 32 Years W/o Prem Chand Gupta @ Gabbar, R/o Village Tilda Deori, Tahsil Tilda, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 1.4 - Mamta Gupta, D/o Late Suresh Gupta, W/o Manoj Gupta Aged About 25 Years R/o Village Kunda (Podi) Nadi Para, District Mungeli Chhattisgarh., District : Mungeli (C.G.) 1.5 - Sunita Gupta, D/o Late Suresh Gupta, W/o Sushil Gupta Aged About 23 Years R/o Village Lakhram Tahsil Ratanpur, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - (Kamlesh) Deleted And Died Through Lrs Honble Court Order Dated 02/08/2022. 2.1 - Bunty S/o Kamal Manikpuri Minor, Through Natural Guardian Father Kamal Manipuri, R/o Near Water Tank, Bankimongra, Tahsil Katghora, District Korba Chhttisgarh. 2.2 - Anand S/o Kamal Manikpuri Minor, Through Natural Guardian Father Kamal Manipuri, R/o Near Water Tank, Bankimongra, Tahsil Katghora, District Korba Chhttisgarh. 3 - Ku. Santoshi, D/o Late Mahavir Prasad Gupta, Aged About 37 Years R/o Tirthani Gali, Behind Shiv Mandir, Near The House Of Manoj Sharma, New Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 4 - Saroj, D/o Late Mahavir Gupta, Aged About 35 Years R/o Through Kamal Manikpuri, Near Water Tank, Bankimongra, Tahsil Katghora, District Korba Chhattisgarh., District : Korba, Chhattisgarh 5 - Ku. Mona, D/o Late Mahavir Prasad Gupta, Aged About 21 Years R/o Tirthani 3 Gali, Behind Shiv Mandir, Near The House Of Manoj Sharma, New Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 6 - Santosh, S/o Late Mahavir Prasad Gupta, Aged About 32 Years R/o Tirthani Gali, Behind Shiv Mandir, Near The House Of Manoj Sharma, New Sarkanda, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ... Respondents {Cause title, as taken from Case Information System} For Appellant : Mr. Raj Kumar Gupta, Advocate. For Respondents : Mr. Prafull N. Bharat, Senior Advocate assisted by Mr. Akash Pandey, Advocate. (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) C A V Judgment 1. This second appeal under Section 100 of the Civil Procedure Code has been preferred by the appellants/plaintiffs against the judgment and decree dated 14th February, 2024 passed by 6th Upper District Jude, Bilaspur in Civil Appeal No. 06-A / 2012 {wrongly mentioned as Civil Suit No. 06-A/12}, whereby learned Upper District Judge has upheld the judgment & decree dated 30th March, 2010 passed by First Civil Judge, Class-I, Bilaspur, District Bilaspur (C.G.) in Civil Suit No. 6-A/2005, whereby the civil suit filed by plaintiffs for partition of suit house situated on the land bearing khasra No. 675/5, area 0.06 acres, situated at New Sarkanda, Bilaspur, Tahsil & District Bilaspur, has been rejected. [For the sake of convenience, the parties would be referred to as per their status shown in the plaint filed before the trial Court] 2. Facts of the case, as projected by the plaintiffs, is that both the original plaintiffs and late husband of original defendant No. 1 were real brother. Following genealogical tree would demonstrate relationship among the parties:- 4 2.1. Land bearing Khsra No. 675 /5, area 0.06 acres is situated in Naya Sarkanda, Tahsil & District Bilaspur (C.G.), in which, their old ancestral house was constructed in some portion of aforesaid land and remaining portion was open, which has been shown in amended map attached with the plaint. Since original plaintiffs and husband of defendant No. 1 were real brother, therefore, each of them have 1/3rd share in the suit property-house. After death of their father late Laxmi Narayan Gupta, suit property-house was recorded in their names in the revenue records. Plaintiffs sought partition, which was refused by original defendant No. 1. Thereafter, Registry Notice dated 17.11.1994 was also served, despite that share of plaintiffs were not given to them, therefore, plaintiffs instituted civil suit seeking partition & possession of 1 / 3rd share each, of suit property-house. 3. Respondents-defendants filed their written statement, in which, they have accepted their genealogy tree. It is pleading of defendants that area of land in dispute is 2376 sq. ft., in which, house is situated, but plaintiffs are not entitled to get share of suit property-house, as its partition was already effected between three sons of late Laxmi Narayan Gupta and in that partition suit property-house was fallen in share of late Mahaveer Gupta, who was y{ehukjk;.k xqIrk ¼e`r½ egkchj xqIrk ¼e`r½ iq= eqjkjhyky xqIrk iq= ¼e`r½ fxj/kkjhyky xqIrk iq= ¼oknh Ø- 2½ 01- nhikckbZ ¼fo/kok½ 02- Jhefr foeyk ckbZ] iq=h 03- Jhefr deys’k] iq=h 04- dq- larks"kh] iq=h 05- dq- ljkst] iq=h 06- dq- eksuk] iq=h 07- larks"k dqekj] iq= ¼izfroknhx.k½ 01- Jhefr uhjk ckbZ ¼fo/kok½ 02- vfuy dqekj ¼iq=½ 03- lqfuy dqekj ¼iq=½ 04- dq- lqfurk xqIrk ¼iq=h½ ¼Okknh Ø-&1 v ls n½ 5 husband of original defendant No.1 – Late Deepabai. Mahaver Gupta died in the year 1994, thereafter, his legal heirs are residing in the suit property- house. It is further pleaded by defendants that after partition, plaintiff No. 1- Murari Lal Gupta was residing in the house situated at Ashok Nagar whereas plaintiff – Girdhari Lal Gupta had purchased land of his share, thus, since, partition was already effected, hence, plaintiffs are not entitled to get share of suit property-house, therefore, their suit is liable to be rejected. 4. On the basis of pleading of the parties, learned trial Court framed as many as five issues, which reads thus : Ø- okn iz’u fu"d"kZ 1- D;k okn i= ds lkFk layXu uD’kk Hkwfe [kljk uEcj 675@5 jdck 0-06 ,dM+ Hkwfe ij cus edku ,oa [kqyh Hkwfe esa oknhx.k ,oa izfroknhx.k dk 1@3] 1@3 fgLlk gksrk gS\ 2- D;k oknhx.k fookfnr lEifRr dk caVokjk djk ikus ds vf/kdkjh gSa\ 3- D;k fookfnr lEifRr e`rd egkohj dks vius HkkbZ eqjkjhyky o fxj/kkjh yky xqIrk ls caVokjs esa izkIr gqbZ Fkh\ 4- D;k oknhx.k okn dk mfpr ewY;kadu dj i;kZIr U;k; 'kqYd vnk fd;s gSa\ 5- lgk;rk ,oa okn O;;\ 5. Learned trial Court recorded evidence adduced by both the parties and after appreciation of oral & documentary evidence, it held that partition was already effected between original plaintiffs and husband of defendant No. 1 in the year 1990, therefore, plaintiffs are not entitled to get suit property-house. First appeal preferred by the plaintiffs was also rejected by First Appellate Court vide impugned judgment & decree dated 29.9.2012. 6 6. Being aggrieved & dissatisfied with the same, appellants / plaintiffs have preferred instant second appeal under Section 100 of the CPC questioning the same. 7. This appeal has been admitted for hearing on following substantial questions of law :- 1. “Whether the courts below were justified in not accepting the documents issued by Patwari to be public documents and not relying upon the same while considering the suit ? 2. Whether the lower appellate Court was justified in deciding the first appeal without considering the application under Order 41 Rule 27 CPC ? 3. Whether the finding arrived at by the courts below was proper in the light of Ex.P-4 which has been admitted by the defendant also in their favour by which the fact of earlier partition claimed by the parties gets automatically disproved ? 4. Whether the courts below have committed an error in not holding that the burden of proving the partition was that of the defendants since they have pleaded the same ? 8. Contention / argument of learned counsel appearing for the appellants / plaintiffs is that, inadvertently, certified copies of revenue documents i.e. Ex. P-1, Ex.P-2 and Ex.P-3 could not have been filed, which were filed before the First Appellate Court by filing an application under Order 41 Rule 27 of the CPC, but that application was rejected by learned First Appellate Court merely on the ground of delay, whereas, defendants themselves have admitted in their written statement that suit property-house was their ancestral property. Therefore, the plaintiffs have been deprived from justice due to wrongful rejection of their application under Order 41 Rule 27 of the CPC. He further submits that though aforesaid application was rejected by first appellate Court, but mistakenly it was mentioned in memo of appeal that, 7 appeal has been decided without considering aforesaid application, which is bonafide mistake. 9. It is further contention of learned counsel for the appellants/plaintiffs that it was pleading of defendants that partition was effected between plaintiffs and their brother Mahaveer Gupta, therefore, onus was on the defendants to prove aforesaid fact, which has been wrongly shifted on the plaintiff against the settled principle of law. It is further contended that Santoshi Bai (DW-1), daughter of late Mahaveer Gupta, has admitted in her cross-examination that Ikrarnama (Ex.P-4) was executed between her, her mother and plaintiffs pertaining to the suit property-house, in which, they had admitted that after selling of suit land, sale consideration will be distributed between them, which show that there was no partition between three brothers, despite that both the courts below have concurrently held that partition was effected between plaintiffs and their brother – Mahaveer Gupta and in that partition, suit property-house was fallen in share of Mahaveer Gupta, which is perverse and contrary to the evidence and the law. Hence, he prayed that appeal may be allowed and concurrent finding recorded by both the courts below dismissing the suit filed by plaintiffs may be set aside and decree may be granted in favour of plaintiffs by allowing their civil suit. 10. Per contra, learned Senior Counsel appearing for respondents / defendants would submit that, it was a basic pleading of plaintiffs that suit house-property was their ancestral property, therefore, the onus was on the plaintiffs to prove the above facts by adducing oral as well as valid documentary evidence, but instead of filing certified copy, they only filed uncertified revenue records to substantiate their pleadings. Since those documents were not the certified copies, therefore, neither it is government 8 document under Section 74 of the Evidence Act, 1872 (henceforth, ‘ Evidence Act) nor certified copy under Section 76 of the Evidence Act. He further submits that it is settled proposition of law that to fill-up the lacunae, provisions contained in Order 41 Rule 27 of the CPC cannot be invoked, therefore, learned first Appellate Court did not commit any mistake in rejecting the application filed by the appellants/plaintiffs under Order 41 Rule 27 of the CPC. In this regard, he placed reliance upon the judgment of the Supreme Court in the case of State of U.P. vs. Manbodhan Lal Shrivastava 1 . He further submits that, learned First Appellate Court after considering the aforesaid evidence filed by appellant/plaintiffs has rejected the same, but wrong contention has been made and thereby wrong substantial question of law has been proposed by the appellants/plaintiffs, that the appellate Court has passed impugned judgment without considering aforesaid application and only on that ground, second question of law has been framed by this Court. It is further contended that nothing has been pleaded pertaining to the contains mentioned in Ikrarnama (Ex.P-4) by plaintiffs nor any statement has been made by Girdharilal in his deposition in this regard. Santoshi Bai (DW-1) has put her signature or thumb impression on it, is also contradictory. It is also not mentioned in Ex.P-4 that it was executed pertaining to which property. Futher, contents of documents itself show that, it was executed pertaining to other case. Therefore, aforesaid document cannot be relied upon. He further submits that oral partition was effected between original plaintiffs and their brother late Mahaveer Gupta, thereafter, they were residing in their respective properties, to which concurrent finding has been recorded by both the courts below, therefore, it is not permissible for this Court in second appeal, to interfere with the 1 AIR 1957 SC 912 9 concurrent finding of facts recorded by two courts below unless findings are completely perverse and contrary to law, which has not been proved by the appellants in instant case. 11. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record of both the courts below with utmost circumspection. 12. Appellants/plaintiffs had filed revenue documents i.e. khasra panchshala (Ex.P-1) of the year 1996-97 to 1998-99, Kistbandi khatouni (Ex.P-2) of the year 1998-99 and Kistbandi Khatouni (Ex.P-3) of the year 1993-94. These documents purported to be copy of revenue documents containing only signature, but it also does not reveal that said signature was of which authority, it does not contain any seal also. Though, it seems to be public documents, but it is not a certified copy. 13. Manner in which certified copy of public document can be issued, has been provided in Section 76 of the Evidence Act, which reads thus :- “76. Certified copies of public documents.- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; 10 and such copies so certified shall be called certified copies. Explanation. - Any officer who, by the ordinary course of official duty is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.” 14. Section 77 of the Evidence Act provides, “such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.” 15. Section 79 of the Evidence Act provides provision of presumption as to genuineness of certified copies, which reads thus :- “Presumption as to genuineness of certified copies. –– The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by Law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer who is duly authorized thereto by the Central Government]: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.” 16. A bare perusal of aforesaid provisions clearly demonstrate that, certified copies as has been issued under the provisions of Section 76 may be produced in proof of contents of public document or part of it, and that certified copies may be presumed as genuine of original documents. 11 17. In instant case, neither revenue documents i.e. Ex.P-1, Ex.P-2 & Ex.P-3 filed by the plaintiffs are certified copies nor it has been proved by calling its original from the office, which maintains the original record. Therefore, learned courts below has not committed any mistake in not relying those documents while considering / deciding the suit. Accordingly, first question of law is answered ‘Positive’ i.e. in favour of defendants and against the plaintiffs. 18. Appellants /plaintiffs filed applications under Order 41 Rule 27 read with Section 151 of the CPC alongwith certified copies of Kist bandi Khatouni of the year 2000-2001, Khasra Panchshala of the year 1997-98 to 2001, Namantraran Panji of the year 1998-99 and Khasra Panchshala & Kist bandi Khatouni of the year 2010-11. 19. At this stage, it would be appropriate to notice the provisions contained in Order 41 Rule 27 of the CPC, which reads thus :- “27. Production of Additional Evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentaryin the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. 12 (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 20. A bare perusal of aforesaid provisions show that if a party seeking to produce additional evidence, then he has to establish that even after due diligence, he could not produce that document, or it was not within his knowledge, then he may be permitted to produce additional evidence. 21. In the case in hand, since copy of revenue documents i.e. Ex.P-1, Ex.P-2 & Ex.P-3 were filed by the plaintiffs under the thought that those documents are true copy of revenue documents, therefore, not filing certified copy before trial Court by the plaintiffs cannot be termed as grave mistake, rather it is found to be bonafide. Further, certified copy of those revenue documents were filed by plaintiffs before first appellate Court and defendants also have admitted in their pleading that suit property-house was their ancestral property, therefore, learned first appellate Court ought to have allowed the aforesaid application and accepted those documents. Hence, it is found that rejecting application filed by appellants/plaintiffs under under Order 41 Rule 27 of CPC is perverse & illegal, hence, the same is unsustainable. However, second question of law is framed in wrong premise of proposal of plaintiffs/appellants that first appellate Court has not considered aforesaid application filed by him, which is found to be bonafide mistake, therefore, second question of law is answered “that it has wrongly been framed, as application filed by appellants/plaintiffs under Order 41 Rule 27 of CPC has been rejected by first appellate Court vide order dated 29.9.2012, however, it is found that aforesaid order passed by first appellate Court is perverse and illegal. 13 22. Undisputedly, both the original plaintiffs and husband of original defendant No. 1- Deepabai were real brother and suit property-house was their ancestral property. Plaintiffs have sought partition whereas defendants have taken a defence that partition was already effected between them in the year 1990, therefore, they are not entitled to get partition. It is settled proposition of law that burden of proof lies on the party, who asserts the affirmative of the facts in issue. [See : Parimal Vs. Veena @ Bharti 2 ]. 23. It is also settled law that burden of proof of any particular fact is upon the person, who assert that fact. In this regard, Section 103 of the Evidence Act, provides as under :- “103. Burden of proof as to any particular fact. - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 24. In the instant case, it is claim of defendants that partition was already effected between the parties and in that partition, suit property-house was fallen in share of late Mahaveer Gupta (husband of original defendant No. 1). Therefore, in light of above law, onus is on the defendants to prove aforesaid fact. 25. In this regard, learned trial Court has framed following issues :- 2- D;k oknhx.k fookfnr lEifRr dk caVokjk djk ikus ds vf/kdkjh gSa\ 3- D;k fookfnr lEifRr e`rd egkohj dks vius HkkbZ eqjkjhyky o fxj/kkjh yky xqIrk ls caVokjs esa izkIr gqbZ Fkh\ 2 (2011) 3 SCC 545 14 26. A perusal of the above two issues reveals that issue number 2 is interdependent on issue number 3, because as per aforesaid legal burden to be proved by defendants on issue No. 3 in their favour, then issue No. 2 will itself be answered by holding that since partition was already effected, therefore, the plaintiffs are not entitled to get partition of suit property-house and if defendants failed to prove aforesaid facts, then plaintiffs are entitled to get partition. Hence, it cannot be said that burden was shifted upon the plaintiffs to prove that partition was not effected between them. 27. From the evidence adduced by both the parties, it is found that their family belongs to low financial strata and they had very limited immovable property. Suit property-house was built by father of plaintiffs namely, Laxmi Narayan Gupta, where earlier point of time, all of them were residing together, subsequently, in the year 1990, both the plaintiffs started residing separately, as has been admitted by plaintiff – late Girdhari Lal (PW-1). 28. As per deposition of original plaintiff No. 1-Girdhari Lal (PW-1) and Santoshi Bai (DW-1), apart from suit property, they were also having property at Ashok Nagar and Khamtarai where original plaintiff No. 1 - late Murarilal Gupta and original plaintiff No. 2 – late Girdharilal Gupta, respectively were residing. Santoshi Bai (DW-1) has stated in her deposition that partition was effected between her father and uncles (plaintiffs) in the year 1990, in which, suit property-house was fallen in the share of her father and plaintiffs had obtained share of land situated at Khamtarai and Ashok Nagar, Bilaspur. However, original plaintiff Girdharilal Gupta (PW-1) has denied aforesaid facts in his cross-examination, but he has admitted that he had sold the land being 5 dismal to one Rani Mishra, though, he has stated that, that land was purchased by himself. He has further stated that the land of Ashok Nagar 15 where original plaintiff No.1 Murarilal Gupta was residing, was government land. Other witnesses of plaintiffs have also deposed that there was no partition between three brothers. But they have also admitted that plaintiffs did not reside in suit house-property since many years. 29. Having considered aforesaid facts and other attending circumstances appears from deposition of both the parties, which have been appreciated by both the courts below, on the preponderance of probability, it cannot be held that finding recorded by both the courts below that, mutual / oral partition was effected between original plaintiffs and their brother is perverse. 30. After amendment in the year 2005 in Section 6 of Hindu Succession Act, 1956, oral partition has not been recognized and only the partition made by executing a registered partition deed under the Registration Act, 1908 or partition effected by a decree of a Court has been recognized under Section 6 (5) of the Hindu Succession Act, 1956, but, this provision is not applicable to a partition effected before 20.12.2004. Prior to aforesaid amendment, oral partition was permissible, as has been held by Hon’ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma 3 . In this regard, observation made in paragraph 130 is reproduced as under :- “130. Earlier, an oral partition was permissible, and at the same time, the burden of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places due to service or otherwise does not show separation. Several acts, though 3 2020 (9) SCC 1 16 not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, as observed in Bhagwani v. Mohan Singh4 and Diggambar Adhar Patil v. Devram Girdhar Patil5” 31. In instant case, having gone through the evidence available on record, which has been appreciated by the trial Court and appellate Court in detail, the claim of the defendants that oral/mutual partition was effected between the original plaintiffs and their brother – Mahaveer Prasad Gupta is not found to be unsustainable. The said claim of the defendants cannot be rejected even on the ground that the suit land is in the name of both the parties in the revenue records. Rather, it is finding of fact, which has been concurrently held by both the courts below. Therefore, in view of settled law of limited scope to be interfered with in second appeal, I do not find any perversity in concurrent finding recorded by both the courts below. 32. Though, defendant Santoshi Bai (DW-1) has admitted in paragraph 12 & 13 of her cross-examination that Ikrarnama (Ex.P-4) was executed by them and their uncles (plaintiffs) pertaining to the suit property-house, in which, they had agreed to sell the same and sale consideration will be distributed between them. But, that document i.e. (Ex.P-4) was filed by the plaintiffs, but no pleading about aforesaid fact was made by them in their plaint. Even plaintiff – Girdhari Lal (PW-1) has also not stated in his deposition about contents of Ikrarnama (Ex.P-4), except, marking the document as Ex.P-4. It 4 1925 SCC OnLine PC 27 5 1995 Supp (2) SCC 428 17 has not been mentioned in Ex.P-4 that aforesaid settlement was arrived at between the parties, pertaining to which property, rather it seems that alleged settlement was arrived at between them pertaining to the property of MJC No. 01/1997 pending before First Civil Judge, Class-I, therefore, only on the basis of aforesaid admission made by defendant Santoshi Bai (DW-1), it cannot be held that partition of suit property-house was not effected between them. Therefore, it is found that both the courts below did not commit any mistake in not relying document (Ex.P-4). 33. In view of above discussion, I do not find any valid ground to be interfered with the concurrent finding recorded by both the courts below. Hence, judgment & decree passed by both the courts below is hereby affirmed. 34. Accordingly, first question of law is answered “positive” i.e. in favour of defendants and against the plaintiffs, fourth question of law is answered “Negative”, as onus of partition was shifted upon defendants, Second question of law is answered “wrongly framed”, third question of law is answered “positive” i.e. in favour of defendants and against the plaintiffs. 35. In the result, the second appeal fails and is hereby dismissed. No order as to cost (s). 36. A decree be drawn-up accordingly. Sd/- (Naresh Kumar Chandravanshi) Judge AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.12.12 11:18:34 +0530