Hon’ble Rakesh Tiwari, J.—Heard Sri H.M. Srivastava, learned counsel for the appellant and Sri P.N.Saxena, learned counsel for the respondents.

2. The plaintiff appellant Madhav Prasad and the defendant respondent Radhey Lal are real brother. By this second appeal plaintiff appellant challenges the validity and correctness of the judgment and decree dated 12.4.2001 passed by Civil Judge (S.D.) Mahoba in Civil Appeal No. 20 of 1998, Mahadev Prasad v. Radhey Lal, dismissing the appeal with costs and upholding the judgement and decree dated 9.7.98 passed by Civil Judge (J.D.) Mahoba, dismissing the suit with costs filed by the plaintiff- appellant arising out of O.S. No. 204 of 1984.

3. The relief sought in the appeal is for allowing the appeal by setting aside the decree passed by the Courts below and for decreeing the suit filed by the plaintiff-appellant through out with costs.

4. The concurrent finding of facts by the Courts below by the impugned judgment and decree stated above, have been challenged by Madhav Prasad- plaintiff/ appellant on the ground that the sale-deed in favour of disputed land and house shown in the site plan as” Nizai Bara and Nizai Makan” was for the benefit of the entire family member having been purchased by defendant/ respondent as karta of the joint Hindu family.

5. The appeal has been admitted on the question of law as to “whether the burden of proof in case of separate acquisition of plot during substitution of Joint Hindu Family lies on the person asserting it be individual property.”

6. The further contention of the counsel for the appellant Sri H.M. Srivastava on the question of vacation of interim relief order is that the plaintiff/ appellant filed suit for permanent injunction for restraining the defendant- respondents from alienating any part of the disputed land and house in dispute i.e Nizai Bara and Nizai land appurtenant alleged to have been purchased by Radhey Lal as Karta of HUF. It is stated that the plaintiff- appellant and defendant respondent Radhey lal is 19 years elder to the plaintiff appellant Madhav Prasad hence after the death of his father in 1954, Radhey Lal the elder brother became the karta of the Joint Hindu Family business which was in the name of Radhey Lal and Madhav Prasad. A partititon took place in 1966 in the family whereby their uncle was given another house whereas the plaintiff appellant Madhav Prasad and Radhey Lal the defendant respondent continued to occupy the portions of the house marked as red and green in the plaint map jointly. The dispute Nijai Bara/ land and house was purchased on 29.3.1973 by Sri Radhey Lal, allegedly from the nucleolus of the HUF in 1979. It is stated that though food was separately cooked by the wives but both brothers continued to do their business together and lived together in their respective portions of the undivided property/ house and other facilities such as lavatories and well in front of the house for common use by the two families.

7. It is urged by the learned counsel for the appellant that the Courts below considered the partition in 1975 but overlooked other cogent evidence as well as law laid down in paras 14 and 16 of the judgment in Kashinath Sa, Yamo Sa, Kabadi, etc. v. Narsing Sa, Bhaskar Sa, Kabadi, etc., AIR 1961 SC 1077. He also urged that it is always open to the members of the Joint Hindu Family to divide some properties of the family and to keep remaining undivided and such properties as are not partitioned can be divided later on in consistence with the rules of Hindu Law. Hence, in view of the judgment rendered above judgment and decree of the Courts below are liable to be set aside and suit filed by the plaintiff appellant be decreed.

8. Per contra Sri P.N. Saxena, learned counsel for the defendant respondent has submitted that the Courts below have given concurrent finding of facts that plaintiff has failed to establish that the disputed property of which partition is sought was not purchased fr