Hon’ble S.U. Khan, J.—Heard learned counsel for the parties.

This appeal under Section 96 C.P.C. has been preferred against decree dated 15.1.1980 passed by II Additional District Judge Pratapgarh in Regular Suit No. 38 of 1973 through which the suit was decreed. The appeal has been filed by four out of five defendants in the Suit which was instituted by respondent No. 1, Asharfi Lal. Defendant No. 5/ respondent No. 2, Shyam Lal supported the case of the plaintiff respondent No. 1. All the six parties in the suit were brothers and sons of Gazidin. Gazidin had two wives. Plaintiff respondent No. 1, defendants appellants No. 1 and 2, and defendant No. 5/ respondent No. 2 were from his first wife and defendants appellants No. 3 and 4 were from second wife. The suit was filed for partition of plaintiff’s one sixth share in three properties described as items No. 1, 2 an 3. Item No. 1 consisted of Ahata situate at Paltan Bazar village Belhaghat. Regarding this item learned counsel for the appellants during arguments stated that his clients had agreed for giving one sixth share to the plaintiff in this property. Item No. 2 consisted of a pucca house No. 41 situate at village Balipur Katra Gulab Singh Road. The third item around which the main dispute between the parties revolves consists of a double storied house and a shop situate on Plot No. 656, Belhaghat.

2. Plaint Case :

According to the plaint allegations in brief the family was joint in the life time of father of the parties Gazidin, that the entire family was residing in House No. 41, Belhaghat Katra Gulab Singh Road which also contained a sweet meat shop. In Para-4 of the plaint it is stated that as the family grew, plaintiff and defendant No. 5 under mutual arrangement started residing separately in two parts of house No. 41, however no partition took place and ancestral business continued jointly. Gazidin died on 27.4.1973 at the age of 65 years hence each brother on his death became entitled to one sixth share in the properties, that the property mentioned as item No. 3 at the foot of the plaint was purchased and constructed with the joint family fund and all the parties were in possession thereof. In Para-6 of the plaint, it was further pleaded that in case property in dispute or part thereof was found to be in the name of defendant Nos. 1 to 4 still the same be treated to be joint family property as defendant Nos. 1 to 4 had no independent business and Gazidin purchased the property from joint family funds as benami. In Para-7, it was stated that for some time before his death Gazidin due to old age and illness (Asthama) was under the influence of defendant Nos. 1 to 4 hence Gazidin instead of purchasing the property of item No. 3 in his own name purchased the property in the name of defendant Nos. 1 to 4 or their wives and plaintiff came to know about that afterwards. In Para-8 it was stated that Gazidin had left behind cash and movable properties also which were in possession of defendant Nos. 1 to 4 and suit for partition of the same and accounting would be filed afterwards.

3. Written Statement :

Defendant Nos. 1 and 3 filed one written statement and defendant Nos. 2 and 4 filed another written statement. However, there was not much difference between both the written statements. The main defence was that Gazidin from his own funds constructed property at Item No. 2 (House No. 41, Balipur Katra Gulab Singh road) in which the entire family was residing, that plaintiff and defendant No. 5 much before June, 1964 had started earning and separated themselves and plaintiff established his shop of sweet meat near Kachehri (court building) and defendant No. 5 also started separate business, that in the beginning of 1964 disputes started arising in the family, hence a family settlement was arrived at through which plaintiff and defendant No. 5 finally separated themselves from the family and a registered deed in respect of partition in between Gazidin, plaintiff and