M. Wahajuddin, J.
1. The plaintiff brought a suit claiming that the (oil) engine in suit was the joint family unpartitioned property of the plaintiff and his brother defendant No. 1 and the defendant No. 1 was negotiating its sale, hence injunction may be granted restraining him from selling the engine. It would appear that the engine was later sold with the permission of the court to the wife of the defendant No. 1. The plaintiff had come forward with the allegations that the holdings and cattle and articles of daily use were partitioned, but the remaining properties remain joint including the engine. The contesting defendant on the other hand maintained that the partition of entire movable and immovable properties between the plaintiff and defendant No. 1 had already taken place and the defendant No. 1 is the exclusive owner of all such property which fell to his share and the oil engine etc. having fallen exclusively to the share of defendant No. 1 is his exclusive property and the plaintiff has no concern with the same.
2. The Civil Judge framed a number of issues. He came to the conclusion that the plaintiffs stand of partial partition is more likely and the engine in dispute is an unpartitioned property of plaintiff and defendant No. 1. He further, found that the defendant No. 1 has transferred the engine insuit to defendant No. 3, but that would not affect the right of the plaintiff. He further, found that the defendants Nos. 1 and 3 cannot transfer this engine to anyone else. The suit for injunction was, therefore, decreed against defendants Nos. 1 and 3, but it was dismissed against defendant No. 2, who was alleged to be the prospective purchaser of the engine and negotiating its purchase.
3. The first appellate court dismissed the appeal. It, however, further observed by way of modification that as the engine stands sold away with the permission of the court and the sale proceeds have been deposited in the court, the plaintiff will be entitled to claim half of the sale proceed of the said engine. The findings of the two courts below are assailed by defendant No. 1 and his wife in this second appeal.
4. It is a well settled law that under Section 100, C.P.C., it is not permissible to reopen the question of facts as such and interference is possible only when findings on question of facts are not supported by evidence as such or they are perverse in the sense that no evidence exists in support of such finding of fact. In fact, otherwise any erroneous finding of fact or inference drawn from the facts found by the courts below cannot be disturbed. I may simply refer to important pronouncements on the point, namely, Ramachandra v. Rama Lingam, AIR 1963 SC 302. Patta Bhiramaswamy v. Hany Mayya, AIR 1959 SC 57 and Bhojai v. Salim Ullah, AIR 1967 All 221.
5. The plaintiff had set up a partition confined to the holdings, the cattle and articles of daily use with the help and intervention of one Ram Behari Shukla as per document Ext. 1 dated 13-6-1963. The contesting defendant denied its execution and further maintained that as this was a mere draft not acceptable to the parties, its cancellation was also executed. The contesting defendant also on the other hand set up an oral partition between him and the plaintiff effected mutually.
6. The courts below discussed the evidence on the point. The first appellate court considered the matter threadbare and held that the document Ext. 1 was duly executed by the parties and it is not established that actually there was any document cancelling it. It, further, held that the contesting defendant's counterstand of an oral partitioneffected mutually cannot hold water and evidence on the point is not worth reliance. It, therefore, rejected the defendant's stand of a complete partition of all joint family properties mutually. It has given strong and cogent reasons for the same. The finding is based on appreciation of evidence after considering it threadbare and this Court cannot interfere with such finding of. fact. The defendant's version that there was an oral partition and the engine was given exclusively to the defendant, thus, fell to the ground and that version has no legs to stand. The first appellate court, however, also held that under the Registration Act the partition deed Ext. 1 relied upon by the plaintiff required registration and so it is inadmissible in evidence and cannot be looked into for proof of any partition as set up by the plaintiff. This view of the first appellate court is again sound, because undisputedly the deed required registration and could not be looked into for want of such registration. The first appellate court further held that as the suit property is admittedly a joint property at its inception and a partition having not been proved, the plaintiff will be entitled to one half share therein.
7. It is urged that the first appellate court has set up a third case for the parties, which it could not do and it should have dismissed the suit. I have given my anxious consideration to such arguments. Had the plaintiff claimed the engine as his exclusive property asserting its partition also, .the position would have been different and on failure to prove a partition, the plaintiffs case would have fallen to the ground, but as would be borne out from the record the plaintiff's case was not that the engince was ever partitioned. The aplaintiff's case was that only holdings were partitioned and the cattle and articles of daily use were also partitioned and all other movable -and immovable properties remained joint as before. It was the defendant's case that they were also partitioned, which the defendant failed to establish. In the circumstances the first appellate court has not set up a third case by its finding that the engine is the joint family property of the plaintiff and defendant No. 1. It is also noteworthy that when initially it was a joint family property admittedly, the plaintiff would under the law have half share therein, unless it was proved that the engine was also partitioned and given exclusively to thedefendant No. 1 as maintained by him. The defendant No. 1, however has miserably failed to prove this.
8. The learned Counsel for the appellant urged that as the plaintiff had come forward with a case of partial partition, the presumption will be that the partition was complete and burden will be upon the plaintiff to show that it was not so. Where parties entered into evidence the question of burden of proof loses its weight and importance and from the evidence on record it does not appear that the engine was the subject matter of partition and the finding of fact in that regard cannot be disturbed. When that is the position, the courts below were fully justified to hold that the plaintiff has half share in the engine and passed the decree accordingly.
9. It was urged that the plaintiff executed a sale deed regarding certain plots in favour of Mst. Durgawati on June, 4, 1963, reciting therein that his share was separated. It is noteworty that the plaintiff was not confronted with this document as to afford any opportunity for explaining the recital. The recitals relied upon as admission are again not clear and categorical. It is nowhere stated expressly that the engine etc. have also been partitioned and the partition is complete in that sense. When that was the position and the plaintiff was not confronted with the recitals, the court was fully justified in considering the context in which such recitals were made and the impact of such recitals and the argument to the contrary will have no force.
10. It was next urged that as the building and the hall in which the engine was fixed was given to defendant No. 1, it should have been presumed that the engine was also given to the defendant No. 1 and the plaintiffs failure to seek remedy very promptly would also weigh adversely against the plaintiff. I am unable to uphold this argument. Actually when there is a partition in any joint family there may be so many things which are fixed or kept at different places in different accommodations but that would not mean that such articles would necessarily go to the parties getting any particular accommodation, building etc. As regards the alleged delay in filing the suit, any party cannot be compelled to necessarily bring a partition suit and the suit for injunction will again be instituted only when there is anyapprehension from the other side with regard to the joint property. So, I would not say that there has been any delay or laches.
11. As regards common sense approach, I would again say that the first appellate court's approach is sound. Once the property in suit was admittedly a joint family property and the case of its partition and its allotment exclusively to any party was not established, members of the joint family will be entitled to their respective shares therein and the broad and common sense approach also fully justified the decree passed by the first appellate court. The property having been sold by the permission of the court, the plaintiff has been rightly held to be entitled to half share of the sale proceeds.
12. I do not find any force in this second appeal and it is hereby dismissed. In the special circumstances of the case, the parties will bear their own costs, of this appeal.