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3. The facts of the above Titles Suits against which the above appeals have arisen may be briefly stated as follows:--

Satchidananda Samanta has filed T,S. No. 1/54 which has been renumbered as T.S. No. 49/73. Satchidananda Samanta filed this suit for partition and accounts against Ranjan Kumar Bose, Smt. Khirodamoyee Dassi, his mother, since deceased and Achudananda Samanta, his elder brother. Subsequently, Bishnu Pada Pramanik, Abdul Latif and others were added as defendants of that suit. The subject matter of the suit is 41 cents of land in Dag No. 624 of Khatian No. 231 of Mouja -- Joy Chandipur, P. S. -- Budge Budge with a pucca structure being a Cinema House thereon. Subsequently, 14 cents of land in Dag No. 621 under Khatian No. 286 of the same Mouja has also been included in the schedule of the property. The plaintiff has alleged that the suit property along with other properties belonged to their father, Gopi Nath Samanta who died in Jaistya, 1341 B. S. leaving Satchidananda and Achutananda, the two sons and widow, Khirodamoye as heirs and legal representatives. They remained in joined possession of the properties including the suit property. Before his death Gopinath stacked huge quantities of bricks and kept in stock timbers, door, windows, window frames etc. With the consent of Satchidananda, Achutananda started construction of a Cinema House on Dag No. 624 utilising the bricks and timber materials stacked by their father. As Satchidananda has not been given the accounts in respect of the income of the said cinema house in spite of repeated demands, he has brought this suit for partition claiming 8 annas share in the lands and structures and the business of the cinema house. He has impleaded Sri Ranjan Bose as the plaintiff has come to know that Ranjan Bose has purchased 6 annas share of the land as well as the cinema house Achutananda. With these allegations the above suit for partition and accounts have been filed. As in the written statement of Ranjan, it was disclosed that the added defendants, Bishnu Pada Pramanik and Abdul Latif were brought in by Achutananda as partners to the cinema business, Bishni Pada and Abdul Latif have been added and one Keshab Chandra Rakshit has also been added as defendants Nos.2(Ka), 2(Kha) and 2(Ga). Achutananda having died during the pendency of the suit has been substituted by his heirs and legal representatives. The suit was contested by Ranjan Kumar Bose, Achutananda Samanta and also by Bishnu Pada and Abdul Latif. Ranjan Bose and Achudananda Samanta filed separate written statement and Bishnu Pada and Abdul Latif have filed a joint written statement. The written statement of Ranjan, Bishnu and Latif are similar in nature and may be stated as follows:--

12. The first point which we have to decide is whether the suit property has previously been partitioned by Achutananda and Satchidananda. The case of Achutananda in this repsect is that after their father's death he Ad Satchidananda decided to get their joint properties and appointed two Arbitrators oh 23rd October, 1935 got their award and a document of partition was prepared in terms thereof and in that document the two brothers and their mother got exclusive allotment of properties and that the suit land fell in his allotment who at his own costs raised structures on the disputed plot for starting the cinema house and after taking licence actually started running the cinema business. He also denies that Satchidananda had nothing anything -- Ed) to do with the construction of the cinema house of running of the said business. When admittedly the suit property was part of joint property inherited by Satchidananda, Achutananda, and their mother, then the onus is heavily upon the person who asserts that there was a previous partition is to prove the same to the satisfaction of the Court. In this respect the evidence of Achutananda Samanta as D.W. 5 in T. S. No. 1/54 has to be looked into. In the examination-in-chief he has stated that after his father's death in 1941 there was a Salish and there was amicable partition in 1342 B. S. and the suit property fell to his share exclusively and since then he got separate possession of their allotments. He has further stated that he got lands of Khatian Nos. 321, 286 and 169 and that the suit property appertains to Khatian Nos. 321 and 286. His further evidence is that his brother got 85 decimal of lands at Banjalharia, 5 Bighas at Avirampur and a shop room appertaining to Khatian No. 168 of Mouja-- Joychandrapur. However, this evidence contradicts the statement made in the written statement of that suit being T. S. No. 1/54, that two Arbitrators were appointed to partition the suit property. The name of those two Arbitrators have been mentioned in paragraph 10 of the written statement, as Rangalal Bhuja and Birendra Kumar Basu. In the evidence Achutananda did not make any whisper about the two Arbitrators who according to him were entrusted in partitioning of the property. No document relating to the amicable partition is referred to paragraph 10 of the written statement of Achutananda has been produced, Satchidananda in his deposition as P.W. 5 has categorically asserted that their paternal properties were never partitioned. It is true that Achutananda in his evidence claimed that as a result of some Salish there was amicable partition in property in 1342 B.S. But in cross-examination Achutananda has made a damaging statement which clearly blows out his story of previous partition. He states in cross-examination as follows:--

13. The evidence of other witnesses on the story of previous partition is also highly unsatisfactory. Nirode Behari Sarkar in his evidence has stated that once there was a talk of partition between the two Samanta brothers and so far as he knew the partition was effected. But his main evidence is to support the plaintiffs case that Satchidananda also was present when the cinema house was constructed and Satchidananda also used to take accommodation loan from him for making payment to the masons and labourers engaged for the construction of * cinema house. In cross-examination he has not also been able to show as to whether other properties are separately possessed or jointly possessed by the two brothers. Therefore, the evidence of Nirode Behari Sarkar cannot be regarded as sufficient to prove the previous partition. The other evidence is that of Bishnu Pada Pramanik, who is D. W. 2 claims to have seen one Khata relating to partition, but no plot Nos. were given nor were any signatures of the plaintiff in that Khata. This evidence of Bishnu Pada Pramanik does not also corroborate the story of Achutananda. Achutananda does not claim that any Khata was prepared for partition. Bishnu also does not have any personal knowledge regarding previous partition. D.W. 3, Kumud Kumar Barui of T.S. No. 1/54 is to the effect that Achutananda alone paid rent for Khatian Nos. 321 and 286 from 1352 B.S. and Satchidananda for the lands of Khatian No. 898 of Mouja -- Banjalharia and Khatian No. 168 of Mouja -- Joychandrapur. He, however, admits that Dhakilas in respect of Khatian No. 321 the names of two brothers have not been written as Marfotdars. If really there was a partition and the muatation of the name of Achutananda in the landlord's Sherestha, then there is no reason as to why the name of both the brothers would continue to be shown in the Dhakilas. Even the municipal tax receipts (Exts. 1 and l(a)) in T. S. No. 1 / 54 the name of both the brothers are shown as assessee. On behalf of Achutananda the appellant in T. A. No. 183/75 as well as on behalf of the respondents of this appeal namely, Ranjan, Bishnu and Latif our attention has been drawn to the evidence of the plaintiffs, Satchidananda in T. S. No. 1/54 and it is submitted that the above evidence would clearly show that there was a previous partition. It is submitted that even though Satchidananda in his evidence claimed that there was no previous partition yet he has admitted that the lands of Khatian No. 898 of Banjalharia is possessed by him exclusively. He also admits that his father left one shop room of the main road which he now occupies alone and his brother alone occupies another shop room in the Bazar. It is also submitted that it was Achutananda who alone obtained sanction from the municipality for building the cinema house and alone obtained the licence from the District Magistrate to run the cinema business there. It is also urged that when the parties have been possessing the properties exclusively in separate allotments, then there is sufficient reason to hold that they were not possessing by amicable arrangement but by virtue of separate allotment by amicable partition.

14. We have carefully considered the evidence of Satchidanandal and that of Achutananda. As no other witness had any personal knowledge regarding whether the joint properties left by the father of Satchidananda and Achutananda were previously partitioned or not, we are of the view that the onus being upon Achutananda to prove that there was previous partition, he has failed to discharge the onus and the finding of the Ld. Trial Judge in this respect based on proper evidence cannot be assailed. It is well-settled that the co-sharers may by virtue of amicable arrangement possess the joint properties exclusively by virtue of amicable arrangement. What Satchidananda has admitted in .his evidence regarding his exclusive possession of some of the joint properties is by virtue of such amicable arrangement. When Achutananda made out a case that two Arbitrators were appointed to amicable partition their properties in 1342 B.S. and the same was partitioned by those Arbitrator and separate allotments were given to him, Satchidananda and their mother yet in the evidence he has not been able to state anything as to what properties were allotted to their mother, which according to him, after the death of their mother would be equally divided between the two brothers. He has, however, said that some properties have been allotted to Satchidananda exclusively. Satchidananda had denied that fact. Satchidananda had admitted that their mother had several paternal properties. It is not at all probable that no document would be created to effect the partition of their properties. In that view the story of previous partition has been rightly disbelieved by the Ld. Trial Judge. The next point to be decided is whether Satchidananda is entitled to file this suit for partition only for a portion of the joint property. Before the Ld. Trial Judge the specific point was raised that the suit was bad for partial partition. In (We -- Ed) find from the evidence of plaintiff, Satchidananda both in the examination-in-chief as welt as in cross-examination, that he has stated that both the brothers have other joint properties than the present suit properties. In examination-in-chief Satchidananda has stated that his father left considerable properties and there was no partition of said considerable properties. He has admitted that he has filed the suit for partition only in respect of plot No. 624 which is plot of the cinema site having an area of 41 cents and plot No. 621 being the adjoining plot having an area of 14 cents. So, admittedly Satchidananda has not brought into the hotchpot of the suit all the joint properties leflt by their father. In cross-examination he also admitted that plot Nos. 622, 623 and 624 appertaining to one Khatian No. 321 are Ejmali but he has brought this suit only in respect of plot No. 624. But have not included plot Nos. 622 and 623 in this suit. He has conceded that plot No. 621 which is included in the schedule of the suit property appertains to Khatian No. 286 and plot No. 620 which also appertains to that Khatian had not been included. He has also conceded that the Khatian No. 898 Banjalharia belonged to him and Achutananda, that land also had not been brought into hotchpot. Therefore, it is clear that save and except the suit properties on which the cinema house have been erected no other joint properties in which both the brothers have shared have not been included in this suit for partition. Then the question arises as to whether the suit is bad for partial partition or not. The Trial Judge has negatived this contention on the ground that in no other joint properties Ranjan Bose which according to plaintiff Satchidananda has 6 annas share has any interest. Therefore, there is no other joint immovable properties of the two brothers in which Ranjan Bose is interested. The Ld. Trial Judte, therefore, finds sufficient reason for not bringing the other joint properties into the present hotchpot. The reason that the Ld. Trial Judge assigns is that as Ranjan Bose is not interested in other joint properties, the plaintiff could bring a suit for partition only in respect of the suit properties in which all the three parties are interested and as in all other joint properties only Satchidananda and Achutananda are alone interested, the present suit would not fail for partial partition. We are of the view that the general principle is that a co-sharer filing a suit for partition against the other co-sharers have to bring all the joint properties into the hotchpot, failing which a suit may be dismissed on the ground of partial partition. In this case even the Ld. Trial Judge has come to the finding that the major portion of the construction of the cinema house was done at the cost of Achutananda. Even if the property was a joint property Satchidananda allowed Achutananda to erect a cinema house thereon. If all the joint properties are brought into hotchpot, then Achutananda having made considerable improvement in a portion of the joint property may legitimately claim that even if his contention that the suit property has not been previously partitioned is not acceptable, then the whole plot in suit might be allotted to him. Proper equity in a suit for partition in that case will not be possible if all joint properties of Satchidananda and Achutananda are not brought into the hotchpot. Only because a portion of the share has been sold to Ranjan Bose, the Ld. Trial Judge should not have held that the frame of the suit is proper. In our view Satchidananda cannot file this suit for partition only in respect of the portion of the suit property in which the cinema house has been constructed leaving all other properties from out of the partition suit. For an equitable partition between the two brothers regard being had to the facts and circumstances disclosed in this case all the joint properties ought to have been brought into the hotchpot and the present suit in our view suffers from this defect of partial partition very badly as the major portion of the joint properties are left out of the partition suit. Even if it is true that Ranjan Bose is not interested in other properties but in order to effect an equitable partition between the two brothers it is necessary that all their joint properties ought to have been brought into the hotchpot.