Abhay M. Naik, J:

1. This is plaintiffs' appeal against judgment and decree dated 27.03.2001 passed in Civil Appeal No. 31A/95 dismissing thereby the suit of the plaintiffs/appellants for restoration of possession.

2. Brief facts relevant for the purpose of this appeal are as under:

(A) Initially, one Babulal [predecessor of plaintiffs/appellants] instituted a suit for possession with averments that the house property bearing Municipal No. 38/293(A) situated in Chiteraoli, Lashkar, with the following boundaries is owned by him:-

(i) In front direction - Road Chiteraoli

(ii) On back-side- plaintiff's another house which is also claimed by the defendant as partner.

(iii) On right side- Mandir Radhakrishna and a portion of back-side property.

(iv) On left side-Gali and thereafter house of Kishorilal.

A roadside room on the first floor of the said house is described as the suit property which was the part and parcel of the aforesaid house and which was purchased by the plaintiff vide sale-deed dated 25.10.1928.

(B) Original defendant Gopaldas [predecessor of defendants/respondents] was the son of plaintiff's uncle and, was, therefore, permitted to use the disputed room on account of cordial & blood relationship.

(C) Plaintiff withdrew the permission granted to the defendant for user of the disputed room and prayed for restoration of possession. He also sought perpetual injunction against the defendant restraining him from using the disputed room.

3. Original defendant submitted his written statement refuting thereby the claim of the plaintiff. He stated that the house bearing Municipal No. 38/293(A) is not owned by the plaintiff. He further stated that the property bearing Municipal No. 38/293 belongs to temple Shri Radhakrishna. Plaintiff fraudulently got his name entered in the municipal record by providing municipal number 38/293(A) to the alleged portion whereas he did not have any personal house. It is further stated that defendant's father, namely, Kannomal and plaintiff's father, namely, Gullimal were real brothers. They lived jointly as members of the joint family and were running joint family business. All the houses were purchased during this period by the HUF. This continued up to the year 1956. A partition took place in respect of movable property between plaintiff and defendant on 28.05.56 which was reduced into writing. Immovable property was not partitioned at all at that time.

Disputed property is a part and parcel of the property belonging to the defendant. It is denied that the plaintiff purchased the said house on 25.10.1928. It is denied that the disputed room was part and parcel of plaintiff's alleged house.

It is denied that any kind of permission was obtained by the defendant for user of the room. It is further denied that the defendant was in occupation of the disputed room under the alleged permission granted by the plaintiff's father and/or by the plaintiff. It is stated that the defendant was born in Samvat 1974 [corresponding year 1917] whereas the plaintiff was born about 8 years thereafter. Both were born in Joint Hindu Family. A house situated in Kamathipura, Lashkar, was purchased on 19.12.1924 in the name of Kannomal and Gullimal. Similarly, another big house situated in Madhavganj was purchased in the name of aforesaid two on 31.12.1925. A small old adjacent house in a dilapidated condition was also purchased on 25.10.1928 by the joint family of Kannomal and Gullimal which was incidentally shown to have been purchased in the sale-deed dated 25.10.1928 in the name of Gullimal alone. Since there was no dispute between the brothers, no objection on this count was raised. Properties purchased vide sale deeds dated 31.12.1925 and 25.10.1928 situated in Madhavganj were reconstructed by the joint family of Kannomal and Gullimal. Similarly, property purchased by registered sale deed dated 19.12.1924 was also reconstructed. Thus, all the aforesaid properties continued to be joint family properties. Defendant submitted an application before the Municipal Corporation to enter his name alongwith plaintiff's name for the entire house in the year 1964 which was allowed.

Disputed property is a residential property. Plaintiff is in occupation of blue coloured portion whereas defendant is in occupation of red coloured portion of the entire house.

Defendant asserted his possession as owner before the Municipal Corporation in file No. 1295/64-3/11. This being so, the suit instituted on 30.01.1978 is barred by limitation.

4. During pendency of the suit, original plaintiff as well as defendant died. Consequently, their legal representatives were brought on record. Learned Trial Judge, after recording the evidence, vide her judgment and decree dated 23.02.95, granted a decree for possession in favour of plaintiff.

5. Aggrieved by the aforesaid, the defendants preferred Civil Appeal No. 31A/95 which has been allowed vide impugned judgment and decree dated 27.03.01 dismissing thereby the suit of the plaintiff. Hence, the present appeal is preferred which has been heard on the following substantial questions of law:

(1) Whether the finding of the learned lower appellate judge in respect of the house in dispute stands vitiated in law as in the facts and circumstances of the case the defendants could not be said to be entitled to any presumption either about the existence of the joint nucleus or its sufficiency for the acquisition of the property in dispute ?

(2) Whether the lower appellate court has erred in placing the burden of proof on the plaintiff which in the circumstances of the case rested on the defendants who had failed to discharge the same ?."

6. Shri H.D. Gupta and Shri K.S. Tomar, Senior Advocates for plaintiffs/appellants & Shri V.K. Bhardwaj, Senior Advocate for defendants/respondents made their respective submissions which have been considered in the light of the material on record and the law governing the situation.

7. For clarity, I feel it proper to describe the pedigree of the parties:

Jhingamal (D)

Kannomal(D) 1934 Gullimal (D)

15.12.1966

Gopaldas [died during pendency of suit], [Original Defendant] Babulal

[died during pendency of suit]

[Original plaintiff]

L.Rs. of Defendant/Respondent L.Rs. of Plaintiff/Appellant

(D) = Deceased

8. It is submitted by the learned counsel appearing on behalf of the plaintiffs/appellants that registered sale-deed dated 25.10.1928 [Ex.P-1] is in favour of Gullimal alone whereby the house comprising the disputed room was purchased by Gullimal. This has been refuted by the defendants with allegations that the Joint Hindu Family Firm in the name of M/s. Kannomal Gullimal was constituted during the lifetime of Kannomal and Gullimal and the purchase of all the properties during the existence of the said Firm up-to 28.05.1956 was made by the earnings of the HUF. The said firm continued despite death of Kannomal in the year 1934 with Gullimal and Gopaldas as its members. This has been countered by the appellants' learned counsel in a manner that Gopaldas and Babulal constituted a partnership firm which was partitioned on 28.05.1956 and, therefore, Gullimal is not a signatory of Ex.D-9, dated 28.05.1956. Since the purchase of the house vide Ex.P-1 was made by Gullimal alone, it is contended that the house comprising the disputed room is owned by him and, therefore, the dismissal of the suit is not sustainable in law. Argument to substantiate this contention was made that no source of HUF has been established and, similarly, existence of the nucleus of HUF was also not equally established. Since Gullimal and Kannomal were separately living, no presumption may be raised about the ancestral business or existence of the nucleus.

9. Before adverting to various rulings citied by the parties, I feel it proper to refer to the evidence on record which obviously would help this Court to form an opinion about the correctness of factual findings recorded by the learned lower Appellate Judge.

10. It may be seen that the defendant pleaded, in specific, that Kannomal and Gullimal constituted a Joint Hindu Family. Kannomal and Gullimal lived jointly. They constituted a Joint Hindu Family and were running a joint business. Purchases vide registered sale deed dated 19.12.1924 and registered sale deed dated 31.12.1925 were, therefore, made in the names of Kannomal and Gullimal by the HUF. Similarly, purchase vide registered sale deed dated 25.10.1928 was also made by the said HUF though it was incidentally got executed in the name of Gullimal alone. Since there was no indifference between the brothers, none was apprehensive from other side and no objection was raised in respect of singular name of Gullimal described in the sale deed dated 25.10.1928. Various other averments have also been made in the written statement to substantiate the said plea. Plaintiff despite averments contained in the written statement did not plead in the plaint that Gullimal was having any personal business and was having any independent source of income. It is nowhere averred in the plaint that Babulal and Gopaldas were running a partnership business. Though it has been tried to be argued that deed dated 28.05.1956 [Ex.D-9] depicts the partition of the partnership, it has nowhere been pleaded in the plaint despite its specific disclosure in the written statement that the same was in respect of partition of partnership firm constituted by Gopaldas and Babulal. It may be seen that vide registered sale deed dated 19.12.1924 [ Ex.D-1C] , a property situated in Kamathipura, Madhavganj was purchased in the name of Kannomal and Gullimal jointly. Vide registered sale deed dated 31.12.1925 [Ex.D-2C], another property situated in Madhavganj, Lashkar was purchased by Kannomal and Gullimal both for a consideration of Rs. 1,200/- paid jointly. Although plaintiff Babulal (PW-6) stated in paragraph 11 of his statement that his father Gullimal and uncle Kannomal were running separate businesses, he has admitted in paragraph 23 of his statement that it is correct that there was a firm in the name of Kannomal Gullimal. He has further admitted in the same paragraph that a partition of the said firm did take place in the year 1956 vide Ex.D-9. He has also acknowledged his own signatures on Ex.D-9. Ex.D-9 is a statement of accounts of firm Kannomal Gullimal, wherein it is mentioned that the cash and jewellery were partitioned on 28.05.1956. Thus, it is crystal clear that firm Kannomal Gullimal was in existence up to 28.05.1956. It is further mentioned in Ex.D-9 that the arrears of house-tax as well as prospective water, electricity charges etc., would be contributed by both the parties in half proportion each. This document clearly establishes that, firstly, the firm Kannomal Gullimal was in existence and, secondly, the house-tax, water and electricity charges etc., in respect of the properties would be paid by both the branches in the proportion of 50:50. Since this document has been admitted by the plaintiff in his own statement, it is not open for him to deny the existence of firm Kannomal Gullimal and that the said firm was not having any earning. It is clearly mentioned in Ex.D-9 that money credited with others would be recovered by the plaintiff and defendant and the expenses for such realization would be made half each by every branch. This makes it clear that the firm Kannomal Gullimal had a business. It had purchased certain properties and there was nucleus belonging to HUF. Contrary to this, plaintiff has been unable to establish that Gullimal was having an independent source of income and had made purchase vide registered sale-deed dated 25.10.1928 [Ex.P-1] by his own earnings.

11. Apart from this, it may be seen that plaintiff Babulal in the written statement [Ex.D-6C] submitted by him in Civil Suit No. 366/60 [Nandkishore v. Gopaldas & others] in the Court of Ist Civil Judge Class II, Gwalior, has admitted that there was Joint Hindu Family and he and defendant were members of such Joint Hindu Family. Ex.D-7 is a certified copy of statement of Babulal to the aforesaid effect. It is true that Ex.P-1 [Registered Sale Deed dated 25.10.1928] is in the name of Gullimal alone, however, in view of the clinching evidence about the existence of the HUF constituted by Kannomal and Gullimal, sufficient nucleus of the said firm and the purchases made during existence of such firm, it is difficult to infer that the purchase vide Ex.P-1 during the existence of HUF was made by Gullimal alone by his independent earnings, more so in the absence of specific evidence to this effect. It is revealed in Ex.D-3C that an application was submitted by the defendant in the year 1964 that the house in question may be entered in the name of HUF of Kannomal and Gullimal. Though it was opposed by the plaintiff, Secretary of Municipal Corporation, Gwalior, on behalf of the Commissioner passed an order and held that the house in question belonged to Kannomal and Gullimal and the same may be entered in the name of Kannomal and Gullimal. This order was upheld by the Commissioner, Municipal Corporation, Gwalior, vide order dated 20.08.1968 [Ex.D-4C]. Identical finding was also given by the Property Tax Officer vide its order dated 28.03.1977 [Ex.D5C]. Existence of firm Kannomal Gullimal is also established by Ex.D-10.

12. Learned counsel for the plaintiffs/appellants placed reliance on Article 228, 231, 233 and 234 of Principles of Mulla Hindu Law, Eighteenth Edition. However, since it has clearly been found that there was a Joint Hindu Family Firm in the name of Kannomal Gullimal which was having its business, it has rightly been found proved that it had earnings and the properties purchased during existence of such firm belonged to the HUF.

Since the plaintiff himself has admitted in paragraph 22 of his statement that business of firm Kannomal Gullimal continued up to the year 1956, learned Additional District Judge is not found to have committed any error in inferring that the property purchased vide Ex.P-1 belongs to HUF. It is true that there are certain documents showing that permission for construction as well as house tax etc., in respect of the house in question were in the name of the plaintiff alone. This by itself is no proof because in the registered sale deed dated 25.10.1928 Gullimal was alone shown as purchaser though the property was purchased during the existence of HUF firm and it could not be proved that Gullimal had any separate earning.

It is true that there is no specific proof about the year of commencement of the HUF firm, however, since it has already been admitted by the plaintiff himself that the firm Kannomal Gullimal was in existence which continued up to year 1956, it may be presumed that the firm must be in existence during the lifetime of Kannomal and Gullimal. Presumption about the continuance of a particular state of affairs is available not in forward direction but may be raised in the facts and circumstances of the case also in backward direction as has been held by the Hon'ble Supreme Court of India in the case of Ambika Prasad Thakur and others etc. v. Ram Ekbal Rai (dead) by his legal representatives and others, AIR 1966 Supreme Court 605.

Kannomal and Gullimal, both were alive during the period of Ex.D-1 and Ex.D-2 as revealed in the document itself. They were also admittedly alive during the execution of Ex.P-1. Considering it and further considering the existence of firm Kannomal Gullimal up to the year 1956, learned Lower Appellate Judge is not found to have committed any error in holding the purchase of all these three properties to have been made by the HUF.

13. Finding of fact with regard to status of the suit property as joint family property returned by the first appellate court is ordinarily final unless its correctness is questioned on the basis of no evidence or perverse as observed by the Supreme Court of India in the case of Narendra Gopal Vidyarthi v. Rajat Vidyarthi, 2010 (I) MPJR (SC) 99. Learned counsel for the appellants has been unable to point out in correctness or perversity as discussed in preceding paragraphs.

14. Admittedly, Kannomal and Gullimal were having joint business until the year 1956. In Lachmi Narain v. Musaddi Lal, AIR 1942 Oudh 155, it is held that the fact that a firm is a joint family concern is itself a nucleus and the property acquired by the joint labours of the members must be deemed to be the joint family property. This view has further been approved by the High Court of Andhra Pradesh in the case of Purna Bai and others v. Ranchhoddas and others, AIR 1992 Andhra Pradesh 270.

This Court, in the case of Shyamlal and others v. Babulal and others, 2009(3) MPLJ 501, has observed:

"7. It is again a settled law that the plaintiff seeking partition of a particular property as joint family property is required to establish that there was a sufficient nucleus which could have been the source of acquisition. Whole of the money required for the purchase of the property in partition suit is not required to be proved to have actually come out from nucleus or that the nucleus was sufficient to have yielded all the necessary funds for acquiring the property in dispute. It is sufficient in law that there is proof about the nucleus which could have been the source of the acquisition. Once the existence of such a nucleus is proved obviously it is for the person asserting his self acquired property to prove affirmatively that he acquired it from his own self acquired funds."

15. It has been observed long back by the Hon. Apex Court in the case of Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda Sankh (dead) by his legal representatives and another, AIR 1969 Supreme Court 1076 :-

"6. ........The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it a coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."

In the case in hand running business of joint family firm in the name of and style of M/s. Kannomal Gullimal up to the year 1956 is well established.

The Hon'ble Apex Court in the case of K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer & Others, 1965 SC 289 has held:

"15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown."

16. This Court in the case of Kashiram v. Kishore, 1982 MPWN SN 196 has clearly held that even if property standing in an individual's name, the same having found to have been purchased before partition out of joint family fund is a joint family property.

In the case of D.S. Lakshmaiah and another v. L. Balasubramanyam and another, 2003 (10) AOC 95 (SC) = AIR 2003 Supreme Court 3800, the Hon. Supreme Court of India has observed:

"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."

In the case in hand, it has already been found on the basis of evidence on record that firm Kannomal Gullimal was a joint family firm and was in existence until the year 1956. It was having its bus

iness in the same name. Suit property was purchased during the lifetime of Kannomal and Gullimal both. Thus, there was sufficient nucleus of the HUF for the purchase of the property in question. Plaintiff having failed to prove his separate earnings has been rightly non-suited. 17. Learned Lower Appellate Judge has rightly observed that plaintiff has nowhere pleaded that when was permission of the user of the disputed room was granted. There is no specific averment in this regard in the plaint. Moreover, it may be seen that the plaintiff instituted the suit in the year 1978 for restoration of possession with a mere plea that the defendant was permitted to use it by the plaintiff on account of cordial relationship due to blood relations. It was after about 15 years when the plaintiff realized that he was not even born on the date of purchase of the house in question, he amended the plaint to incorporate that the permission was granted by his father. There is absolutely no explanation for absence of incorporation of such important fact at the time of institution of the suit itself. In the absence of specific proof about the grant of permission, learned lower appellate judge is not found to have erred in holding that the theory of the plaintiff about grant of permission for user of the disputed room is not believable. 18. In view of the aforesaid discussion, it is observed that the existence of HUF Kannomal and Gullimal and sufficiency about existence of joint nucleus of the said firm have rightly been inferred by the learned lower appellate Judge in the light of the evidence on record and no error has been committed by him in recording such findings. Similarly, in the light of plaintiff's own admission about the business of HUF till year 1956, the defendants are found to have discharged their burden by placing sufficient evidence on record. On the contrary, the plaintiff himself has failed to discharge the initial burden to prove that he was having separate business and separate earning at the time of purchase vide Ex.P-1. This being so, both the substantial questions of law are answered against the appellants. The appeal being devoid of substance is hereby dismissed with cost. Respondents' counsel fee to the tune of Rs. 5,000/-, if already certified. Appeal Dismissed.