A finding of fact by a lower appellate court cannot be assailed in a second appeal unless it is based on no evidence.

Tarkeshwar Nath, J.

1. This application by defendants Nos. 1 and 3 is for review of the judgment dated the 3rd August, 1964. of Ahmad, J. (as he then was) in second Appeal No. 600 of 1962.

2. The facts giving rise to this application are these. The suit out of which the aforesaid second appeal arose was for specific performance of contract of sale of 1 bigha 18 kathas 5 dhurs of land in village Mahinam Patti; and the case of the plaintiff was that Sant Mallik, father of defendant Nos. 1 and 2 as the karta of the joint family consisting of himself and all the other defendants, had executed a Mahad-danama. dated the 14th November, 1953. in respect of the aforesaid land in his favour. The consideration of the sale was Rs. 1900/-out of which Rs. 300.00 was claimed to have been paid at the time of the execution of the Mahaddanama; Rs. 1234/- was agreed to be set off against two hand-notes executed by Sant Mallik, dated the 8th August, 1952 and 2nd January, 1953, and the balance of Rs. 366/- was agreed to be paid fit the time of the execution of the sale deed, within three months from the date of the Mahaddanama. Sant Mallik, unfortunately, fell ill and died on the 30th April, 1954, with the result that the sale deed agreed to between the parties could not be executed by him. Sant Mallik was the karta of the joint family and, on his death, the plaintiff asked his sons and other heirs the defendants to execute the deed, but they refused and hence the plaintiff instituted the suit for the relief already indicated.

3. Defendant Nos. 1 and 3 took up the plea that the Mahaddanama was a fraudulent and fabricated document and that Sant Mallik had no right, title or interest in the property described in the Mahaddanama. Their case further was that Sant Mallik got the joint family properties partitioned in 1343 Fs. through the help at Punches and the properties described in Schedule I of their written statement were allotted to defendant Nos. 1 and 3; those described in Schedule II were allotted to defendant No. 2 and 18 kathas of land described in Schedule III were allotted to Sant Mallik. They relied upon an award (Exhibit E) dated the 29th April. 1942, for showing that 18 kathas only were allotted to Sant Mallik. Their case was that Sant Mallik could not alienate any property beyond what was given to him by the said award (Exhibit E), Defendant No. 2 took similar pleas; but he died during the pendency of the suit and then his heirs were substituted.

4. The Munsif held that the Mahaddanama was a genuine document and it was executed by Sant Mallik; there was no partition between Sant Mallik and his sons and that Sant had title and possession in respect of the land which he had contracted to sell. Accordingly, he decreed the suit. There was an appeal against that decree, but the decree was affirmed. Thereafter, there was a second appeal numbered 553 of 1959 and it was disposed of by the judgment of this Court on the 24th Jan. 1962. This Court affirmed the findings given by the two Courts that Mahaddanama was genuine, valid and for consideration, but it remanded the case to the lower appellate Court for deciding the following questions:

"(a) Whether the partition set up by the appellants had been established, the onus to prove partition being on the appellants, and,

(b) If the Court of appeal below comes to the conclusion that the defendants case that there had been partition by metes and bounds in 1942 was correct, it will further consider its effect on the Mahaddanama (Ext. 6) executed by Sant."

5. The lower appellate Court, on remand, came to the conclusion on a consideration of the evidence that there was a partition by metes and bounds among Sant Mallik and his sons in 1942 and by the said partition only 18 kathas of land as described in Schedule III of the written statement of defendant Nos. 1 and 3 were allotted to the share of Sant Mallik. The lower appellate Court further gave a finding that the Mahaddanama (Exhibit 6) was bi