The central legal point established in the judgment is that without evidence of private partition, co-tenants are entitled to execute/alienate the property as regards to their respective share only.

S. N. SRIVASTAVA, J.

( 1 ) THIS Second Appeal has been preferred by plaintiff-appellant against the judgment and decree dated 30 11. 1996 passed in Civil Appeal No. 42 of 1995 confirming the judgment and decree dated 11. 2. 1994 passed by trial court in Original Suit No. 577 of 1990.

( 2 ) PLAINTIFF filed a suit for cancellation of sale deed executed by Hirday Narain Singh (defendant no. 1 in favour of Shyam Narain Singh defendant No. 2 on the ground that there was a private partition between the plaintiff and defendant No. 1 in which out of land of plot No. 274 area 19 biswa and in plot No. 272 out of 2 Bigha 10 Biswa 11 Door, 15 Biswa 15 Dhoor was given to defendant No. 1 and plaintiff was given remaining area of plot no. 272 1 Bigha 14 Biswa and 16 dhoor and both are in actual) possession in respect of their area, but defendant No. 1 executed sale deed in favour of defendant No. 2 on 28. 6. 1988 showing one half share of total area of Plot no. 272 in respect of Shyam Narain Singh defendant No. 2, the sale deed is liable to be cancelled.

( 3 ) DEFENDANTS denied plaint allegation and urged that both (defendant No. 1 and plaintiff) are real brothers and are co-tenants to the extent of one half share. They denied any private partition and also said that there is no reference of any division bf holding in revenue record. Defendant No. 2 purchased 1/2 share of plot No. 272 by defendant No. 1 on consideration, which has also been mutated in the name of defendant No. 2 in the revenue record Various other pleas were also taken in written statement.

( 4 ) TRIAL court on consideration of evidence on record decreed the suit in part cancelling the sale-deed in respect of sate of the southern portion of plot No. 272 but maintained the sale deed in terms of decree of one half share in the property in dispute. This judgment and decree was affirmed in Civil Appeal preferred by, plaintiff.

( 5 ) AT the time of admission, this Court passed following orders regarding, substantial question of law.

"heard learned Advocate appearing for the appellant. Duly considered the submission. Substantial question regarding the family partition Under Section 176 of U. P. Z. A. and L. R. Act has been raised. In the circumstances, it is admitted. "

( 6 ) HEARD learned counsel for the parties.

( 7 ) LEARNED counsel for appellant urged that in the sale deed itself defendant Hirday Narain Singh has admitted private partition and claimed southern portion of plot No. 272. He urged that recital in the sale deed as well as other material on record, there was a private partition between the parties. Learned counsel for appellant referred certain other documents filed along with stay extension application supported by affidavit to prove that private partition was there. It was urged that the finding of courts below to the effect that there was no partition between the parties and the sale deed is valid to the extent of 1/2 share only is vitiated in law.

( 8 ) IN reply to the same, learned counsel for defendant-respondents urged that findings of the courts below to the effect that there was no private partition as urged by plaintiff does not suffer from any illegality and supported by evidence.

( 9 ) AFTER consideration of arguments of learned counsel for the parties, careful consideration of judgments of courts below and material on record, I am of the view that courts below rightly held that there was no private partition/family settlement between the parties. Though both the parties claimed private partition but they are at variance as regards to the terms of private partition. According to plaintiff, he was allotted one Bigha 14 Biswa 16 Dhoor in plot No. 272 and rest of land in suit that is remaining part of plot No. 272 and plot No. 274 area 19 Biswa was allotted to defendant No. 1. To the contrary the defendants case that he was given southern portion of plot No. 272 in his share. The term of partition of either party is not borne out from the record. No evidence

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