M.Y. Eqbal, J.

1. This Second Appeal by the defendants-appellants is against the judgment of reversal. The suit filed by the plaintiffs-respondents being Partition Suit No. 116 of 1981 claiming partition of half share in the suit property, was dismissed by the Sub Judge, Garhwa in terms and judgment and decree dated 21.9.1987 holding that there had been previous partition between the parties.

2. In appeal filed by the plaintiffs-respondents, being Title Appeal No. 23/87, the appellate court, namely, the Addl. District Judge, Garhwa, in terms of judgment and decree dated 21.9.88, allowed the appeal and set aside the judgment and decree passed by the trial court and decreed the suit.

3. This second appeal was admitted for hearing on 10.7.90 on the following substantial question of law:

Whether the learned court of appeal below has erred in law in not discussing the vital documentary evidence relied upon by the learned trial court for coming to the conclusion that there has been a previous partition among the parties?

4. The admitted facts are that Ganeshi Rawat was the common ancestor of the parties. He died leaving behind two sons, Nakkchhedi Choudhary and Sheo Balak. Plaintiff No. 1 is the son of Nakchhedi choudhary whereas the defendants- appellants are the heirs of Sheo Balak.

5. Plaintiffs case is that after the death of Ganeshi Rawat, his two sons, Nakchhedi choudhary and Sheo Balak inherited the suit property jointly in equal shares and continued their joint possession. Soon thereafter, Nakchhedi died and Sheo Balak became the karta of the joint family. After some time the plaintiff No. 1 got employment at Dehri-on-son but the cultivation remained joint. The plaintiffs used to pay half rent to Sheo Balak and the produce of the land used to be distributed among them. Plaintiffs further case is that after the death of Sheo Balak, the parties used to reside separately but the cultivation remained joint. On increase of family members, the plaintiffs demanded partition but the defendants refused their demand and hence the suit.

6. The case of the defendants-appellants, on the other hand, as pleaded in the written statement, is that in 1345 Fasli (i.e. 1938) the plaintiffs and Sheo Balak amicably partitioned their landed property by metes and bounds and a memorandum of partition was prepared by one Harihar Dubey over which the plaintiffs and Sheo Balak put their L.T.Is. Since then the plaintiffs and the defendants started living separately and came in separate possession of their property and they started cultivating their lands also separately as per partition. The parties got their names mutated separately and paid separate rent to the landlord as per the allotment made in the said partition.

7. Both the parties adduced evidence, both oral and documentary, in support of their respective cases. The trial court, after considering the entire evidence, both oral and documentary, came to a finding that the partition actually took place in 1938 and since then the parties have been coming in separate possession of their respective shares and they have been enjoying their properly separately and got their names mutated and paid rent to the ex-landlord and also to the State of Bihar. Accordingly, the trial court dismissed the suit.

8. The appellate court only discussed the validity and admissibility of the document of partition(Ext.B) and came to the conclusion that the document of partition is not admissible in evidence on the ground, inter alia, that when the partition document was prepared the plaintiff was minor and he denied his signature on the said document and also on the ground that the said document of partition, being unregistered, is not admissible in evidence. The appellate court, therefore, reversed the finding of the trial court and decreed the suit for partition.

9. The substantial question of law formulated at the time of admission of this appeal is as to whether the judgment of the trial court can be sustained in law f