Banerjee, J. : This appeal at the instance of the defendant-appellant arose out of a suit by the plaintiff for partition. The plaintiff and the defendant No.1, since deceased, were two brothers and the defendant no. 1 was the elder brother of the plaintiff. It is alleged that they used to carry on business in dry fruits jointly and used to mess together and formed a joint family and had a joint common fund, Ejmali, which used to be kept with the defendant no. 1, being the eldest of the brothers. On 16th December, 1927 with the above joint fund, the property at 25, Ekbalpore Lane, was purchased by both the two brothers in the name of the rider brother, the defendant no. 1, as the plaintiff had ample confidence and faith in him. It is stated that thereafter on the joint effort and with the income of the Ejmali business, construction was effected on the said premises and it became thus the joint property of the two brothers, the plaintiff and the defendant no. 1 and this property mentioned in schedule "A" forms one of the subjects of the present suit and was liable to be partitioned. It is further staled that the plaintiff feeling inconvenience in the joint mess and joint dwel