PARMAL Vs. GYASIA

JUDGEMENT

(1.) THE question of burden of proof looses all its importance when both the parties have adduced all the evidence which they had intended to adduce. The parties are related to each other as members of the family and the suit property is ancestral. There is no deed of partition. The oral evidence has been discussed and it has been found that the partition as alleged by the plaintiff was not proved.

(2.) ADMITTEDLY , there has been no partition through the agency of the revenue Courts consistently with the tenancy law governing the suit land and the parties. Even if the parties are in separate possession of the joint holding that would be only a mode of enjoyment or a mutual arrangement between them but certainly would not be a partition. The Courts below have not erred in any manner whatsoever in holding that the plea of partition setup by the plaintiff was not substantiated. Belatedly, at the stage of the first appeal, the plaintiff moved an application seeking an amendment of the plaint so as to raise the pleas that the suit land was secured by the plaintiff consistently with mutual agreement and that the plaintiff had acquired title by adverse possession also. The first plea was too vague. The second plea, even if allowed to be raised, would not have made any difference inasmuch as the suit land having been held to be joint, one of the co -owners even if in exclusive possession, would not be entitled to plead acquisition of title · by adverse possession in the absence of pleas as to ouster. That was not the case pleaded. The lower appellate Court has rightly observed that not only the amendment was highly belated but was also unnecessary as the proposed amendment would not have in any manner affected the findings already arrived at. The lower appellate Court rightly rejected the prayer for amendment.