Sanjay K. Agrawal, J.

1. The substantial question of law formulated and to be answered in defendant's No. 1 to 3 second appeal is as under:-

"Whether both the Courts below were justified in holding that the suit for partial partition filed by plaintiff is maintainable ignoring the fact that the suit does not embrace entire joint family property especially ignoring the property held by them in the State of Uttar Pradesh?"

[For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court].

Sans unnecessary details, the facts which are essential to be stated for the purpose of disposal of the present second appeal are that:--

1.1 The following genealogical tree will establish the relationship between the parties:--

1.2 The suit property originally belonged to four brothers, namely, Raghunandan Prasad, Prayag, Shivram and Ramasray. Plaintiff-Jagdish is son of Shivram, whereas, defendants No. 1 and 2 are sons of Raghunandan Prasad and defendant No. 3 is grandson on Raghunandan Prasad, defendant No. 4 is son of Prayag and defendant No. 5 is son of Ramasray.

1.3 The joint family of the four brothers purchased scheduled suit property out of their income. Plaintiff Jagdish son of Shivram commenced an action seeking decree for partition of his 1/4th share in the scheduled suit property described in Schedule-A attached with the plaint stating inter alia that the scheduled suit property was purchased with the income of all four brothers, namely, Raghunandan Prasad, Prayag, Shivram and Ramasray.

1.4 It is further case of the plaintiff that defendant No. 1-Ramgopal refused to allot share demanded by him in the joint family property, leading to institution of suit seeking decree of partition and separate possession to the 1/4th share in the scheduled suit property.

1.5 Defendants No. 1 to 3 filed their joint written statement denying the contentions of the plaintiff and took a principal defence that scheduled suit property was never purchased from the income of the joint family and therefore, the plaintiff has no share in the scheduled suit property and suit is liable to be dismissed.

1.6 Defendant No. 4 filed his written statement stating inter alia that he is also entitled for 1/4th share in the joint family property, whereas defendant No. 5 opposed the suit by filing separate written statement.

1.7 The plaintiff examined two witnesses and exhibited one document in support of his suit, whereas defendants No. 1 to 3 were examined 3 witnesses and filed seven documents in support of their defence.

1.8 The Trial Court by its judgment and decree dated 11-12-1992 partly decreed the suit holding that the plaintiff is entitled for 1/4th share in the scheduled suit property excluding 4.549 hectares.

1.9 Feeling dissatisfied with the judgment and decree of the Trial Court, defendants No. 1 to 3 filed First Appeal under Section 96 of the Code of Civil Procedure, 1908 (in short 'the CPC') before the First Appellate Court. The First Appellate Court by its impugned judgment and decree dated 7-10-1998, partly modified the decree holding that the property left out by the Trial Court for partition will also be included and held that the scheduled suit property is joint family property of Raghunandan Prasad, Prayag, Shivram and Ramasray and each one has 1/4th share in that property and the plaintiff is also entitled for 1/4th share in that property.

2. Impugning the legal acceptability and sustainability of the judgment and decree of the First Appellate Court, this second appeal has been filed by the defendant's No. 1 to 3, which has been admitted on substantial question of law formulated and recorded in the opening paragraph of this judgment.

3. Mr. A.K. Prasad, learned counsel appearing for the appellants/defendants No. 1 to 3 while criticizing the judgment and decree of two Courts below, would submit that both the Courts below have committed palpable error of jurisdiction in decreeing the suit for