JUDGMENT :- This is a plaintiffs Second appeal in a suit for partition. The parties are brothers. The dispute relates to a house, the site of which was purchased on 21st August. 1941 for of consideration of Rs. 1,000/- in the joint name of both the brothers. The construction of the house began in 1947 and was completed by 1948. The defendants case was that the house belonged to him exclusively. He had purchased the land from his own separate funds, but the mother of the two brothers. the father being dead, desired that the name of the plaintiff should also be entered in the sale deed and the defendant acquiesced in the wishes of the mother, on the assurance that the plaintiff would pay his share but that was never paid.

2. It is undisputed that there was no partition between the brothers at any time after their fathers death and they had continued to remain joint in estate. It is a different matter that both the brothers were employed and besides the ancestral property they had taken up employment to eke out their livelihood. The family to which they belonged possessed some 34 bighas, 14 biswas of agricultural land. The case comes from district Meerut. It does, however, appear that the whole area of the land did not belong to the two brothers, and, according to the lower appellate Court, the share of Naubat Ram the father of the two brothers, came to about four bighas of land in that holding.

3. The principal issue on which the parties went to trial was whether the plaintiff had a half share in the house at item No. 1 of the plaint. The property of which partition was sought in the suit consisted of two houses. There was no dispute with regard to the house described at item No. 2 at the foot of the plaint. The dispute was confined to the house at item No. 1 at the foot of the plaint. The Trial Court found that there was no nucleus with the family from which the land beneath the house could have been acquired it being admitted by the plaintiff that he did not contribute any money towards the purchase of the land. It has been noticed above that the land was purchased for Rs. 1,000/- only. The Trial Court found that the plaintiff got employment for the first time in the year 1942 as a Tube-well Operator. His salary was Rupees 18/- per month and was claimed to have risen to Rs. 50/- by about 1947 but according to the trial court the plaintiff was in the grade of Rs. 18-1-50 and, therefore, his salary in the year 1947 would have been about Rs. 24/per month. The Trial Court did not, therefore, believe the plaintiff and held that he had completely failed in proving that he contributed anything towards the construction of the house in suit. It was contended for the plaintiff before the Trial Court that it was for the defendant to prove that he was possessed of sufficient funds, that the land for the house had been acquired and the house had been built by him from out of his own funds exclusively, but according to the Trial Court, that was a wrong approach and the burden lay upon the plaintiff to show that the house in dispute had been acquired out of joint funds or with the help of a joint family nucleus, and as such it was for the plaintiff to show that it was so. This is followed by the Trial Courts finding that the plaintiff failed to prove that he had contributed anything to- wards the construction of the house or there was any such nucleus with the help of which a house worth Rupees 29,000/- could have been constructed. In the result the Trial Court held that the plaintiff had no share in the house shown as item No. 1 and decreed the suit only for the partition of the house shown at item No. 2 at the foot of the plaint. The claim for partition of the house shown at item No 1 at the foot of the plaint was expressly dismissed.

4. The lower Appellate Court affirmed the said judgment and decree of the Trial Court hence this second appeal.

5. According to the judgment of the lower Appellate Court the three grounds on which the plaintiff c

Click Here to Read the rest of this document