B.AMIT STHALEKAR,J. - (1.) Heard Shri Arvind Kumar Singh, learned counsel for the appellants and Sri Ramesh Singh, learned counsel for the respondents.
(2.) This is the defendant's second appeal. The plaintiffs-respondents filed a suit for partition of the suit property. The plaintiff is one of seven brothers, all sons of Badri Prasad. The other sons are Ram Prasad (defendant no. 1), Vijay Shanker (defendant no. 2), plaintiff no. 1 himself, Nanku, Triveni Prasad, Shiv Shanker and Prahlad. It is stated that Triveni Prasad and Nanku had separated from the family during the life time of their father Badri Prasad. Triveni Prasad took a house on rent in Sunder Ghat, Mirzapur whereas Nanku went to live in his in-laws house. The remaining five brothers purchased the house and the land in dispute through their own earnings through a sale deed dated 11.11.1970. In the south front portion of the house a shop was set up and behind it was a kothari in which the plaintiff and his two brothers Shiv Shanker and Prahlad started living. The defendant no. 1 Ram Prasad with the consent of Shiv Shanker and Prahlad started a business of Halwai in the same shop. In this house and landed property Mata Prasad, the plaintiff, Ram Prasad, defendant, Prahlad, Vijay Shanker and Shiv Shanker started living each having â ..•th share on the basis of the sale deed dated 11.11.1970. Prahlad and Shiv Shanker wanted to start their own business, therefore, they proposed to sell â ..•th share each. The plaintiff no. 2 Bittan Devi who is the wife of plaintiff no. 1 agreed to purchased the â ..•th share of Shiv Shanker and Prahlad each. Consequently through a sale deed dated 8.3.1982 Bittan Devi purchased the â ..•th share of Prahlad in the house property and by another sale deed dated 16.3.1982 she purchased â ..•th share of Shiv Shanker in the said property. After some days Vijay Shanker also sold his â ..•th share in the property to Bittan Devi through a sale deed dated 21.3.1995. Ram Prasad declined to sell his â ..•th share in this property. Thus the share of the two plaintiffs in the property in dispute came to â ..•th share of plaintiff no. 1 and â .. - share of plaintiff no. 2.
(3.) The trial court among the other issues framed an issue as to whether there has been a partition of the property in dispute between the brothers. Since the burden of proof lay upon the plaintiff, the plaintiff filed paper no. 10 Ga, the sale deed dated 11.11.1970 showing the purchase of the said property in the name of five brothers for a consideration of Rs. 6,000/-. Paper no. 11 Ka is the sale deed dated 8.2.1982 executed by Prahlad in favour of Bittan Devi for a consideration of Rs. 3,000/- of his â ..•th share of the property. Paper No. 12Ka was the sale deed dated 16.3.1982 executed by Shiv Shanker in favour of the plaintiff no. 2 for a consideration of Rs. 3,000/- of his â ..•th share of the property. The plaintiff filed paper no. 58 Ka which is the sale deed dated 21.3.1995 executed by Vijay Shanker in favour of the plaintiff no. 2 for a consideration of Rs. 30,000/- of his â ..•th share of the property. The statement of plaintiff no. 1 was recorded and his affidavit was also filed as paper no. 91 Ka in which he has reiterated the facts of his plaint. Paper no. 16 Ka is the statement of Bittan Devi, plaintiff no. 2 give on affidavit describing the property in dispute as consisting of one passage and a stair case going to the first floor in the east which was constructed by plaintiff no. 1. Prahlad appeared as P.W. 2 and in his statement on affidavit paper no. 98 Ka he has supported the case of the plaintiffs.;