Where parties entered into evidence the question of burden of proof loses its weight and importance and from the evidence on record it does not appear that the engine was the subject matter of partition and the finding of fact in that regard cannot be disturbed.

( 1 ) THE plaintiff brought a suit claiming that the (oil) engine in suit was the joint family unpartitioned property of the plaintiff and his brother defendant No. 1 and the defendant No. 1 was negotiating its sale, hence injunction may be granted restraining him from selling the engine. It would appear that the engine was later sold with the permission of the court to the wife of the defendant No. 1. The plaintiff had come forward with the allegations that the holdings and cattle and articles of daily use were partitioned, but the remaining properties remain joint including the engine. The contesting defendant on the other hand maintained that the partition of entire movable and immovable properties between the plaintiff and defendant No. 1 had already taken place and the defendant No. 1 is the exclusive owner of all such property which fell to his share and the oil engine etc. having fallen exclusively to the share of defendant No. 1 is his exclusive property and the plaintiff has no concern with the same.

( 2 ) THE Civil Judge framed a number of issues. He came to the conclusion that the plaintiffs stand of partial partition is more likely and the engine in dispute is an unpartitioned property of plaintiff and defendant No. 1. He further, found that the defendant No. 1 has transferred the engine in suit to defendant No. 3, but that would not affect the right of the plaintiff. He further, found that the defendants Nos. 1 and 3 cannot transfer this engine to anyone else. The suit for injunction was, therefore, decreed against defendants Nos. 1 and 3, but it was dismissed against defendant No. 2, who was alleged to be the prospective purchaser of the engine and negotiating its purchase.

( 3 ) THE first appellate court dismissed the appeal. It, however, further observed by way of modification that as the engine stands sold away with the permission of the court and the sale proceeds have been deposited in the court, the plaintiff will be entitled to claim half of the sale proceed of the said engine. The findings of the two courts below are assailed by defendant No. 1 and his wife in this second appeal.

( 4 ) IT is a well settled law that under S. 100, C. P. C. , it is not permissible to reopen the question of facts as such and interference is possible only when findings on question of facts are not supported by evidence as such or they are perverse in the sense that no evidence exists in support of such finding of fact. In fact, otherwise any erroneous finding of fact or inference drawn from the facts found by the courts below cannot be disturbed. I may simply refer to important pronouncements on the point, namely, Ramachandra v. Rama Lingam, AIR 1963 SC 302, Patta Bhiramaswamy v. Hany Mayya, AIR 1959 SC 57 and Bhojai v. Salim Ullah, AIR 1967 AH 221.

( 5 ) THE plaintiff had set up a partition confined to the holdings, the cattle and articles of daily use with the help and intervention of one Ram Behari Shukla as per document Ext. 1 dated 13-6-1963. The contesting defendant denied its execution and further maintained that as this was a mere draft not acceptable to the parties, its cancellation was also executed. The contesting defendant also on the other hand set up an oral partition between him and the plaintiff effected mutually.

( 6 ) THE courts below discussed the evidence on the point. The first appellate court considered the matter threadbare and held that the document Ext. 1 was duly executed by the parties and it is not established that actually there was any document cancelling it. It, further, held that the contesting defendants counterstand of an oral partition effected mutually cannot hold water and evidence on the point is not worth reliance. It, therefore, rejected the defendants stand of a complete partition of all joint family properties mutually. It has given strong and cogent reasons for the same. The finding is based on appreciation of evidence after considering it threadbare and this Court c