N. ANAND VENKATESH, J.

1. The present Original Side Appeal has been filed by defendants 1 and 3 in the suit aggrieved by the preliminary decree of partition passed by the learned single Judge in C.S. No. 83 of 2011, dated 24.02.2017.

2. The short facts that are necessary to decide this appeal are the parties to the suit in C.S. No. 83 of 2001 are the sons of late G. Tejmull Surana. The first respondent in this appeal as plaintiff filed the suit claiming for the relief of partition and to allot 1/4th share in the suit schedule properties. The case of the plaintiff is that the "A" schedule property belongs to the father of the plaintiff and defendants. That apart there are HUF incomes, rental income, investment in shares, sundry debtors, cash in hand and bank which was described as schedule "B'' to the plaint. Apart from that, the plaint also consist of schedule ''C'' which deals with certain other movable properties. It is the case of the plaintiff that after the demise of their father and mother, each of the brothers are entitled to 1/4th share in the suit properties and since his brothers were not co-operating to mutually partition the properties, the present suit was filed claiming the relief of partition.

3. The contesting defendants 1 and 3 filed a written statement wherein they did not deny the relationship between the parties and they also did not deny the fact that each of the brother is entitled to 1/4th share in the suit properties. The only effective defence that was taken by the appellants as defendants is that there are certain gold and silver articles that belongs to the HUF and their mother, which has not been brought within the preview of the suit and therefore the suit is bad on the ground of partial partition.

4. Even during the pendency of the suit the appellants filed A. No. 2702 of 2013 to amend the plaint and add schedule ''D'' showing gold jewels and silver articles, which according to them should also form part of the partition suit. In this application an order was passed by the learned single Judge on 10.09.2013 appointing an Advocate Commissioner to break open 2 bureaus in which it was expected that the gold jewellery and similar articles will be available. Pursuant to the order, the Advocate Commissioner on completion of his job, filed a report to the effect that no gold items or jewels and no silver articles were found in any of the bureaus.

5. On the side of the plaintiff Exs.P-1 to P-19 was marked and Exs.C-1 to C-4 were marked through Court. The plaintiff examined himself as PW-1 and defendants 1 and 2 examined themselves as DW-1 and DW-2.

6. The learned single Judge on a detailed consideration of the facts and circumstances and also on appreciation of the oral and documentary evidence decreed the suit as prayed for and a preliminary decree was passed to the effect that each of the parties to the suit are entitled to 1/4th share in the suit properties.

7. While deciding the suit, a specific issue was framed with regard to the objection raised by the appellants on the ground of partial partition and the same was dealt with in detail. The learned single Judge after elaborately considering all the materials found that no such gold jewellery or silver articles were actually available. For this purpose, the learned single Judge relied upon the evidence of the 2nd defendant who was examined as DW-1 and also the evidence of the 3rd defendant who was examined as DW-2. The learned Single Judge also took into consideration the order passed in A. No. 2702 of 2013 and the report filed by the Advocate Commissioner. After elaborately considering all these materials, the learned single Judge came to the conclusion that no such gold jewellery or silver articles are available as claimed by the appellants herein and therefore the suit is not bad on the ground of partial partition.

8. The learned counsel for the appellants contended that the suit ought to have been dismissed on the ground of partial partition. To