( 1 ) THIS is an appeal by the 1st defendant in a suit for possession over a certain land. The plaintiffs allegations were that the two defendants, appellant and respondent 2 respectively, along with others, were co-sharers in this land, that in 1940 the same had been partitioned, that an area of 158 sq. yards had been given to defendant 2 (respondent 2) and that, on 24-8-1943, this defendant had under a registered deed of exchange transferred the same to the plaintiff who, in lieu thereof, had given to him, defendant 2, the property in schedule B of the plaint. The relief claimed was for possession over this 158 sq. yards of land by virtue of this exchange and, in the alternative, over the property in schedule B.

( 2 ) THE defence of the appellant was that he and not the defendant 2, from whom the plaintiff claimed to have acquired this area, was the owner of the same, having been in long and absolute possession of it and that there had been no partition as alleged by the plaintiff in 1940.

( 3 ) THE trial court decreed the suit only against defendant 2 in respect of the property in schedule b, but dismissed it as against defendant 1 in respect of the area of 158 sq. yards aforesaid. This was on the findings that defendant 2 and others were joint owners of the plot measuring 158 sq. yards, there having been no legal partition of the same, that for this reason the deed of exchange dated the 24-8-1943, was invalid and that the defendant 1 (appellant) had been in possession of this area only as a co-sharer and not adversely to the other co-sharers.

( 4 ) ON appeal by the defendant 2, the decree of the trial court was reversed, the learned Judge decreeing the suit in respect of the 158 sq. yards against defendant 1, but dismissing it in respect of the property in schedule B against defendant 2. This was on the finding that the partition alleged by the plaintiff had been proved by legal evidence and that the said area had been allotted to defendant 2 who, therefore, was entitled to transfer it to the plaintiff by exchange.

( 5 ) BEFORE I mention the points raised in this Court by the learned counsel for the defendant-appellant I may note that, according to the plaintiff and defendant 2, the plot, of which the disputed area of 158 sq. yards forms part, had been subjected to a partition by the co-sharers. They allege that a writing had been drawn up to evidence this partition, the same having been signed by 11 out of the entire 13 co-sharers, as the remaining two were away in Hyderabad. It was further alleged by them that this writing had been lost in transit on its way to that place, where it had been, sent for the signatures of the absentee co-sharers. The writing, though signed by the eleven co-sharers at home, did not of course bear the signatures of the absentee co-sharers when it was lost. It was, therefore, for all intents and purposes and taking it as a document embodying an agreement for partition, an unsigned and incomplete document in the sense that it had not been signed by all the co-sharers. The writing having been lost could not and was not of course produced, though a paper marked Ex. B-4 which the defendant 2 described as a copy of the fard prepared at the time of the partition was filed. This copy does not bear anybodys signature.

( 6 ) IN this state of the record, the trial court held that neither the writing sent to Hyderabad nor the writing Ex. B4 filed by the defendant 2 being signed by the co-sharers, they could not legally prove a partition of the plot in dispute. The court did not consider the oral evidence at all, presumably on the assumption that the alleged partition having been evidenced by a writing and the writing itself not being admissible, no other proof was possible. The lower appellate court on the other hand held that the writing being only evidence of a settlement already made among the co-sharers, if the same was not admissible, the settlement itself could be proved by oral ev