Judgment

SUBBA RAO, J. : This is an appeal by certificate granted by the High Court at Allahabad against its judgment dated May 7, 1954, setting aside the decree made by the Civil Judge, Agra, in a suit filed by the appellant for a declaration that the properties more particularly mentioned in Schedules B, C and D annexed to the plaint, were his absolute properties.

2. To appreciate the facts and the contentions of the parties, the following relevant part of the genealogy will be useful.

The date of death of Lachhman Prasad does not appear in the record. Jwala Prasad died in 1908; Kashi Ram, in 1924; Ram Lal, in 1914; Banwari Lal, in 1914; and Raghubar Dayal, in 1933. The ancestral house of the family was in village Naugaien, district Farrukhabad. The plaintiff s case is that Lachhman Prasad, his sons and descendants constituted a joint Hindu family, that there was never a partition in the family, that three of the members of the said family namely Kashi Ram, Raghubar Dayal and Bhagwan Dayal, jointly started a business at Agra, that they jointly acquired some properties and houses during the lifetime of Kashi Ram, some after his death, and others after the death of Raghubar Dayal, and that the said properties were the joint family properties of the said members, under the Hindu Law. His further case is that after the death of Kashi Ram, the business and the properties acquired during his lifetime devolved upon the plaintiff and Raghubar Dayal by survivorship, and that, after the death of Raghubar Dayal the said properties, along with the properties acquired during the lifetime of Raghubar Dayal passed on by survivorship exclusively to the plaintiff. The properties described in Schedule A are the ancestral properties; those described in Schedule B are the properties acquired jointly by the said three members during the lifetime of Kashi Ram; those described in Schedule C are properties acquired by Raghubar Dayal and the plaintiff after the death of Kashi Ram; and the D Schedule properties are those acquired by the plaintiff after the death of Raghubar Dayal.

3. Alternatively, it is alleged that, even on the assumption that there was a partition in the family of Lachhman Prasad, a reunion should be inferred from the conduct of the said three members during the lifetime of Kashi Ram and thereafter. It is further alleged that the defendant, the widow of Raghubar Dayal, filed suits in the Revenue Court under the provisions of the U. P. Tenancy Act for half a share in the income of mauza Chaoli, Chak Soyam Nagla Kasheroo and mauza Chak Chaharam Talab Firoz Khan, that the said Revenue Court framed an issue raising the question of title to the said properties and sent the same for decision to the Civil Court, as it should do under the provisions of the said Act, that the learned District Munsif held in Suit No. 15 of 1939, a suit filed in respect of mauza Chaoli, that the plaintiff therein had title to a half share in the said village, that the Revenue Court, on the basis of the said finding, gave a decree in her favour in respect of half a share of the income of the said village and that the said decree was taken on appeal to the District Court and also, on further appeal, to the High Court, but without success, i.e., the decree of the District Munsif was confirmed, and that the suits in respect of other villages are still pending. The plaintiff (appellant herein) says that the said finding of the Revenue Court does not operate as res judicata in the present suit, and that he is entitled to reagitate the matter. On those allegations the present suit was filed in the court of the Civil Judge, Agra, for a declaration of the plaintiff s title to the properties described in Schedules B, C and D annexed to the plaint and for a permanent injunction restraining the defendant from executing the decree in Suit No. 15 of 1939.

4. The defendant (respondent herein) in her written-statement alleges that the family of Lachhman Prasad was divided, that