S. B. SINHA, J.

( 1 ) LEAVE granted.

( 2 ) THIS appeal is directed against a judgment and order dated 4. 4. 2006 passed by a learned Single Judge of the High Court of Judicature of Madhya pradesh, Gwalior Bench, Gwalior in Second Appeal No. 356 of 2001 whereby and whereunder an appeal preferred by the respondent from the judgment and decree dated 2. 7. 2001 passed by the 9th Additional District judge, Gwalior in Civil Appeal No. 86a of 1999 affirming the judgment and decree dated 1. 11. 1999 passed by the XIth Civil Judge Class II, Gwalior in civil Suit No. 203a of 1996 dismissing civil suit filed by appellant/respondent, was allowed.

( 3 ) CONTROVERSY involved in this appeal centres around the construction of a Will executed by one Shri Bishan Sahai Vidyarthi on 21. 11. 1965. The said Bishan Singh Sahai died in or about 1973.

( 4 ) INDISPUTABLY, within a month from the date of the execution of the said Will, an immoveable property was purchased for a sum of Rs. 32,000/-, inter alia, from the amount set apart for the benefit of the appellant and his mother.

( 5 ) BISHAN Sahai Vidyarthi had five sons, namely, Rameshwar Sahai, rajeshwar Sahai, Harbansh Sahai, Raghuvansh Sahai and Krishan Sahai; the eldest of them being Harbansh Shai, father of the appellant herein. Plaintiff-respondent Rajat Vidyarthi is son of Rameshwar Sahai, the youngest son of Bishan Sahai.

( 6 ) THE aforementioned suit was filed by the respondent for declaration and permanent injunction against the appellant herein alleging that he had been making attempts to dispose of the suit property which is a house belonging to the joint family. Appellant, in his written statement, contended that the said property was bequeathed to his mother and, thus, the plaintiff-respondent had no right in relation thereto.

( 7 ) THE learned Trial Judge, despite finding that the suit property was a joint family property, inter alia, on the premise that no injunction can be granted against a co-owner in terms of Section 41 (h) of the Specific Relief act, 1963 and the only remedy available to the plaintiff was to file a suit for partition, dismissed the suit.

( 8 ) THE respondent did not prefer any appeal thereagainst. The appellant, however, preferred an appeal against the finding made therein that the suit property was a joint family property. By reason of a judgment and order dated 2. 7. 2001, the said appeal was allowed by the learned 9th Additional district Judge, Gwalior, holding :

"21. At the time of execution of the Will, if bishan Sahai was trying to purchase the house for chandramukhi, but no appropriate and good house was found by him and even plaintiff has not initiated any proceedings on the ground that their money is invested in the disputed house before filing of the suit after the demise of Bishan Sahai, though Bishan Sahai had died in the year 1973. Therefore, this inference could be drawn from the conduct of other heirs of Bishan Sahai that the disputed house has been purchased from the amount payable to Chandramukhi. Therefore, plaintiff has failed to prove that the disputed house is the property of the Joint Family. "

( 9 ) A Second Appeal was preferred thereagainst by the respondent. Two substantial questions of law were formulated which are :

" (1) Whether, after dismissal of the suit, defendant has right to file appeal? (2) Whether, the property in dispute is Joint hindu Family Property?"

The first question was answered in favour of the appellant. Respondent has not filed any appeal thereagainst. So far as the second substantial question of law is concerned, the high Court held :"substantial question of law No. 2 is "whether the property in dispute is Joint Hindu Family property". To decide this substantial question of law, I will have to go through the record of the trial court, judgment and decree passed by trial court and lower appellant court. It is also necessary to peruse the evidence adduced by both the parties and if it reveals that learned First appeal co