Once a partition is proved or admitted, the presumption is that it was a complete partition both as to parties and as to property, and the onus of proving exclusion of any property from partition lies upon the person alleging such exclusion.

Sinha, J.

1. This is a plaintiffs appeal in a suit for partition of plaintiffs 5 annas 4 pies share in 34.80 acres of land.

2. The genealogy given by the plaintiffs is undisputed. Their case is that the family continued joint with Ritlal Mahton, father of defendant No. 1, as the karta tul 1338 Fasli. For the sake of convenience the family separated in mess in 1330 Fasli, but the properties of the family continued joint until 1338 Fasli when all the joint family properties except the property in suit were partitioned by metes and bounds. The parties, according to the plaintiffs, are in joint possession of the property in suit, but, as inconvenience was felt in maintaining joint possession and in payment of rent, they demanded partition of the suit lands, but, on the defendants unwillingness to get the partition effected amicably, the plaintiffs were obliged to file the present suit. Two sets of defendants have been impleaded. The defendants 1st party only contested the suit, while the defendants second party filed a written statement substantially supporting the case of the plaintiffs. According to the major defendants of the defendants 1st party, it was about 32 years before the suit that a private partition in the family had been effected by which the several branches of the family separated in mess from one another and all the joint properties except their ancestral lands were partitioned by metes and bounds. It was in 1338 that their ancestral lands were divided by punches. After the division by metes and bounds in 1338, no property was left joint between the parties. It is alleged that properties acquired by each of the cosharers after the first partition, which took place about 32 years before the suit, remained his separate property with which the other cosharers had no concern. It is said that the properties mentioned in schedules 2 and 3 of the plaint are the separate and self-acquired properties of the defendants 1st party with which the plaintiffs or the defendants 2nd party have no concern, and it is further contended that the properties mentioned in Schedule 1 of the plaint, which are part of the ancestral property, had already been partitioned. The minor defendants 1st party filed written statement through their guardian-ad-litem adopting the defence put forward by the major defendants 1st party.

2a. The learned Subordinate Judge has held that, where partition is admitted or proved, the presumption is that all the properties were divided and a person alleging that some family properties remained joint has to prove his case, and that the onus of proof in this case, on the admitted facts, was very heavy on the plaintiffs and that it was for them to prove that the property in suit was excluded from partition and was left ijmal. After a very careful consideration of the evidence, the Court below came to the finding that the plaintiffs story of exclusion of the suit lands from the previous partition was a myth and that the plaintiffs failed to prove that the lands in suit were left ijmal. It was also held that the lands set out in Schedules 2 and 3 of the plaint were the separate and self-acquired properties of the defendants 1st party and that there was a complete partition between the parties in 1338 Fasli. as alleged by the defendants 1st party. Upon these findings, the learned Subordinate Judge dismissed the suit with costs.

3. Mr. Misra, Counsel for the appellants, contended that the Court below was wrong in dismissing the suit and in holding that tnere was a complete partition in the year 1338 Fasli. He also challenged tne finding of the learned. Subordinate Judge that the onus of proof was upon the plaintiffs. It was further contended that the learned Subordinate Judge was misled in holding that there was a complete partition in 1338 Fasli because of the recitals in exhibit B(4) and also because of there having been certain criminal cases between the parties. Mr. Misra also argued that the Court below s