CHOUDHARY SIA SARAN SINHA, J.

1. This appeal by some of the defendants is directed against the judgment and decree of the learned Additional Subordinate Judge, Gaya, decreeing the plaintiffssuit for partition.

2. One Rashdhari Singh had three sons, Jugal Singh, Basudeo Singh and Ramkeshwar Singh. He had also a brother named Kharagdhari Singh. Jugal Singh had two sons Deoki Singh and Ramnandan Singh (defendant No. 2). Deoki Singh had a son named Balmiki Singh, who is defendant No.1, defendant No. 3 is the widowed mother of defendant No. 1. Mt. Dhaneshwar Kuer (defendant No. 4) is the wife of defendant No. 2, Basudeo Singh (since dead) died leaving behind one Mt. Dipa Kuer, his widow, and Lalpari Devi, wife of his predeceased son. Ramkeshwar Singh undisputedly died issueless in a state of jointness with his other two brothers named above.

3. Lalpari Devi, the sole plaintiff respondent of this appeal after the death of Dipa Kuer during the pendency of the suit, along with her mother-in-law, Dipa Kuer, instituted the instant suit for partition of her eight annas interest in what was described to be the joint family properties of all the defendants 5 to 11, being the descendants of Kharagdhari Singh. The allegation in the plaint, inter alia, was that the deed of gift dated the 16.09.1963, said to have been executed by Dipa Kuer in favour of defendant No. 1, was a fabricated and sham document and, in fact, it was never executed as such by Dipa Kuer. Undisputedly, this deed of gift embraced eight annas interest in the properties sought to be partitioned in this suit. The plaintiffs sought for partition by ignoring this deed of gift.

4. Defendant No.1 contested the suit, alleging inter alia, that the deed of gift mentioned above was a genuine and valid document and Dipa Kuer having parted with her interest in the suit properties under the deed, the suit instituted by her for partition must fail. Defendants 2, 3 and 4 did not enter appearance. Defendants 5 to 11 appeared and filed a written statement but they subsequently left the scene.

5. On 6.07.1971 Dipa Kuer was examined on commission. One witness on behalf of defendant No. 1 was also examined as a special witness. Thereafter some controversy appears to have arisen between the learned advocates for the plaintiff and defendant No.1 touching the question of onus of proof i.e. the right to lead evidence first. It appears that this controversy was settled between the parties on the advocates conceding that the suit be decided on the pleading of the parties, themselves, obviously meaning the plaint filed by the plaintiffs and the written statement filed on behalf of the defendant No. 1, even ignoring the evidence already adduced. Accordingly, the Subordinate Judge delivered the judgment in which, as stated above, he decreed the suit on contest against defendant No. 1 and ex parte against other defendants. Defendants 1 to 4 have taken the matter to this court in this First appeal.

6. Mr. Lakshman Sharan Sinha, learned counsel for the appellants attacking the judgment of the court below as perverse and illegal, submitted that the same be set aside and the case be sent back to the trial Court on remand for decision in accordance with law. This contention was refuted by learned counsel for respondent first party.

7. One of the grounds of attack by Mr. Sinha was that there being no agreement between the plaintiff and the defendants, except defendant No. 1 about the disposal of the suit on the basis of the pleadings of the parties, the court below erred seriously in law in deciding the suit ex parte against the other defendants, even without prima facie evidence to support the ex parte claim. Defendants 2 to 4 had not filed any written statement at all. The other defendants did file a written statement but they were not parties to the agreement, referred to above. Obviously, therefore the so-called agreement entered into between the advocates of the plaintiff and defendant No. 1 coul