1978 INSC 0037
                                           Binod Bihari Lal and Others

                                                           Vs

                                      Rameshwar Prasad Sinha and Others

                                          Civil Appeal No. 2163 of 1968

                                       (N. L. Untwalia, P. S. Kailasam JJ)

                                                      02.02.1978

                                                     JUDGMENT

UNTWALIA, J. -

1. This appeal by certificate is by the defendants. It arises out of a suit for partition filed by the
plaintiffs-respondents. The suit was declared in part by the trial court. The Patna High Court
modified the decree of the trial court in some respects in favour of the plaintiffs. The defendants
have come up to this Court.

2. Mr. S. N. Prasad appearing for the appellants pressed this appeal in regard to only two items of
properties; (1) the house at Sadisopore, the ancestral village home of the parties; (2) certain bakasht
lands which had become the kasht of the intermediary under Section 6 of the Bihar Land Reforms
Act. Learned submitted that these two properties were the self acquired properties of the appellants'
ancestors, the trial court was right in holding that the house at Sadisopore was such a property and
both the courts below were wrong in holding that the bakasht lands were not the self acquired
properties.

3. It appears from the judgments of the courts below that by and large both the properties and
specially the house, leaving aside the land upon which it stood, were acquired by Sheosaran Lal who
had a large amount of practice as a lawyer at Arrah and Patna. But the appellants were defeated on
the ground that the properties had been blended together with the joint family properties and hence
quite long before the institution of the partition suits they become joint family properties by
blending. Mr. Prasad submitted that in absence of a specific pleading to that effect in the plaint, the
two items of properties could not be held to be joint on the theory of blending. We do not accept this
arguments as sound in this case. Having appreciated the entire facts and circumstances of the case
we think that the pleading that the properties were the joint family properties was sufficient to
enable the Court to look into the evidence of blending which was merely a historical aspect of the
question as to how the properties had become joint family properties. The High Court has rightly
held that the house at Sadisopore had become a joint family property because of blending in support
of which there was ample evidence. We need not repeat what has been stated in the judgement of the
High Court in this regard.

4. The judgement of the High Court was also attacked in regard to the orchard in village Semcera.
But we find no substance in the argument and no justification for our interference with the finding
of the High Court.

5. So far as the bakasht lands are concerned, apart from the fact that the findings of the two courts
below are concurrent and unassailable, there is a further insurmountable difficulty in the way of the
appellants in that they had not filed any appeal or cross-objection in the High Court challenging the
decision of the trial court which was adverse to them in regard to this property.

6. For the reasons stated above we dismiss this appeal but in the circumstances make no order as to
costs.

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