Sanjay K. Agrawal, J.

Original plaintiff Pusauram filed a suit for declaration of title and permanent injunction and also for possession and in alternative, partition and possession of the suit land bearing Khasra Nos.406 & 407, area 8.90 acres, situate at Mouza Kota, Tahsil & District Bilaspur and a house situate at Achanakmar Tigadda and 25 decimals of land situate at Canal Road, Kota. That suit was dismissed by the trial Court and in appeal filed by the plaintiffs, the first appellate Court partly decreed the suit with regard to land bearing Khasra Nos.406 & 407, area 8.90 acres, but declined to grant decree for the house situate at Achanakmar Tigadda and for the land of 25 decimals situate at Canal Road, Kota, by the impugned judgment. The defendants have preferred S.A. No.849/1999 questioning the judgment & decree delivered by the first appellate Court granting decree of declaration of title and recovery of possession against them, whereas, the plaintiffs have preferred S.A.No.1070/1999 against the said judgment & decree partly declining the decree for the house situate at Achanakmar Tigadda and for the land situate at Canal Road, Kota. This is how both the appeals have been clubbed and heard together and are being decided analogously by the common judgment.

2. In the second appeal preferred by the defendants, the following substantial questions of law were formulated for determination: -

"(i) Whether Ex.P-7 is required registration or it could be treated as a memorandum of partition?

(ii) Whether looking to the fact that Ex.P-7 is not signed by any of the parties, it could be used by any of the parties for the purpose of proving partition?

(iii) Whether the finding recorded by the lower appellate Court is perverse as it is based on evidence which could not have been foundation for reversing the judgment of the trial Court?"

3. The following substantial question of law was formulated for determination in the second appeal preferred by the plaintiffs: -

"Whether on the basis of findings arrived at by the learned first appellate Court, the plaintiffs are also entitled to a decree for possession of Tigadda house and land measuring 0.25 acres adjoining canal of Kota, Achanakmar?

(Parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.)

4. Essential facts necessary for adjudication of these appeals are as under: -

(4.1) Original plaintiff Pusauram, original defendant No.1 Ram Bahorik and defendant No.2 Baisakhu were brothers being sons of one Jethu. Original plaintiff Pusauram filed suit for declaration of title, possession and injunction in respect of the suit property mentioned in the plaint particularly, Khasra Nos.406 & 407, area 8.90 acres, as well as the house situate at Achanakmar Tigadda and 25 decimals of land situate at Canal Road, Kota stating inter alia that said Jethu owned 3.5 acres of land at Village Changori, 13.5 acres and a pukka house at Village Kota, and three kaccha houses at Achanakmar Road. It was further pleaded that during his lifetime, Jethu used to own a kirana shop, cloth shop and tobacco business in which all the three brothers i.e. the original plaintiff, original defendant No.1 and defendant No.2 were jointly involved and used to participate in the said business. It was also pleaded that three brothers owned a house and 19-20 acres of land in Village Kota and also owned 4.50 acres of land at Village Changori and house at Bilaspur. It was also pleaded that partition took place among the three brothers and the plaintiff got agricultural land i.e. the suit land as mentioned in the earlier paragraph and the same was recorded in his name by the order dated 28-1-1985 passed by the Naib Tahsildar which was set aside ultimately by the order of the Sub Divisional Officer dated 12-8-1986 and the said order was confirmed by the Commissioner on 27-6-1988, as such the order of mutation was ultimately, set aside and affirmed. It was further pleaded t