- (1.) THIS second appeal, preferred under Section 100 of the Code of Civil Pro cedure, 1908, is directed against the judgment and decree dated 03-09-1981, passed in Civil Appeal No. 04 of 1979 whereby, judgment and decree passed by the trial court on 19-12-1978 in Original Suit No. 26 of 1975, is confirmed.
(2.) BRIEF facts of the case are that plaintiff/appellant filed a suit for parti tion of house detailed at the foot of the plaint, on the ground that the plain tiff has 1/3 share in the property left behind by his deceased father Tika Ram. The parties are related with each other by the following pedigree : Table Tika Ram (died in 1951) ______________________ Nathoo Ram (Son) (Plaintiff) Paras Ram (son) (died in 1968) Harish Chand (son) (defendant No. 5) Smt. Rameshwari Devi Widow def. No. 1 _______________________________ Arun Kumar (son) Defdt. No. 2 Km. Suman defdt. No. 3 Km. Nisha defdt. No. 4 Property in suit mentioned in the foot of the plaint is a house consisting of nine rooms situated in village Kaulagarh, District Dehradun, over the land measuring area one bigha six biswa. Pleadings between the parties show that the pedigree is admitted to the parties but it is pleaded by the defendant No. 5 that Tika Ram is not the owner of the property in suit. In this connection, it is pleaded by the contesting defendants that the house was purchased in the year 1944 by Paras Ram and defendant No. 5 in the name of Tika Ram as "benami". It is further pleaded in the written statement that the plaintiff separated from his father in the year 1931 and was living separately, as such, he was not in possession of the property. Lastly, it was pleaded by the contest ing defendants that the suit was barred by time. 3. On the basis of the pleadings following issues were framed by the trial court : 1. Whether, the plaintiff owns 1/3 share in the property in suit? 2. Whether, the plaintiff has no share in the property in dis pute, as alleged in para 8 to 12 of the written statement? Whether, the court has no juris diction to try the suit? Whether, the suit is barred by time?
(3.) WHETHER, the plaintiff has no right to maintain the suit? To what relief, if any, the plain tiff is entitled? 4. After recording the evidence and hearing the parties, initially, the suit was decreed on 28-08-1975 by the trial court. It appears that said judgment and decree was challenged before the first appellate court in Civil Appeal No. 96 of 1975, which was allowed and the case was remanded back to the trial court. Thereafter, on 26-08-1976, the trial of the suit proceeded afresh as the appointment of guardian of the minor defendant was required to be made as per appellate court's order. The trial court proceeded afresh and after hear ing, dismissed the suit on 19-12-1978 on the ground that the purchase of house in dispute in the name of Tika Ram was Benami and that the plaintiff had already got separated from the joint family of his father. Aggrieved by said judgment and decree dated 19-12-1978, plaintiff filed Civil Appeal No. 04 of 1979, which was also dismissed on 03-09-1981 by the lower appellate court. Hence, this appeal. 5. This Second Appeal was filed before the Allahabad High Court on 17-11-1981, which was admitted on following substantial questions of law: 1. Whether, the lower appellate court has committed an error of law in placing the burden of proof (that the sale deed in fa vour of Tika Ram was Benami) on the appellant? 2. Whether, the fact that the appel lant separated from his father in the year 1931 had the affect of depriving him of the rights in property left by his father? 6. I heard learned counsel for the parties and perused the record of the lower courts. Answer to substantial question of law No. 1 :;