C. Y. SOMAYAJULU, J.

( 1 ) PLAINTIFFS in OS No. 68 of 1980 of the file on the Court of the subordinate Judge, Bapatla are the appellants.

( 2 ) FOR the sake of convenience, i would refer to the parties as they are arrayed in the trial Court in this judgment.

( 3 ) PLAINTIFFS (appellants) filed the suit, inter alia, for partition and separate possession of their 20/121st share in the properties specified in the schedules appended to the plaint, alleging that they are sons of the 3rd defendant Govardhan rao, the third son of Balakoteswar Rao who including their father 3rd defendant had four sons and two daughters i. e. , defendants 1 to 6, and that their grandfather balakoteswar Rao owned ancestral immovable properties viz. , houses at Ponnur and Bapatla shown as item Nos. 1 and 2 plaint A schedule besides properly shown in the plaint B schedule and business and other movable properties and that defendants 1 to 4, after their marriages, started living separately keeping the plaint schedule properties joint, and defendants 2 and 4 were carrying on business at Bapatla living in item No. 2 of the plaint B schedule, while defendants 1 and 3 along with their father were living at Ponnur doing joint business living in item No. 1 of plaint A schedule. The 3rd defendant was staying in the northern portion of the house mentioned in item No. 1 of plaint A schedule while the 1st defendant was living in the southern portion of the said house. Balakoteswar Rao used to live in the central portion of the said house. After the death of Balakoteswar rao on 28-7-1973, the central portion of item No. l of the plaint A schedule was being enjoyed by defendants 1 and 3 according to their convenience. Since 3rd defendant is not looking after them property and is not agreeable to affect a partition of the joint family properties they are obliged to file the suit. 1st defendant filed his written statement admitting the relationship, but denying the allegation that he and the other defendants are members of an undivided Hindu joint family and contending that he, his brother and father stated living separately from 1-4-1969 and that in 1973 there was a division of the joint family properties between all of them whereat items shown in plaint A and B schedule were divided by metes and bounds and in that partition he was allotted the southern three rooms in item No. l of the plaint A schedule while 3rd defendant, was allotted the northern two rooms of item No. l of plaint A schedule, and Balakoteswar Rao was allotted the central two rooms in the said house. Item No. 3 of plaint B schedule was given to him towards Jyeshta Bhagam. The difference in value of the various shares was adjusted by payment of cash, and a memorandum of Partition dated 5-2-1973 was written and was signed by all the parties, i. e. , Balakoteswar Rao and his four sons. Since Government Servants were on strike at that time, the partition deed could not be registered and as per Will dated 15-2-1973 executed by Balakoteswar rao in a sound disposing state of mind he became entitled to the share of his father. In fact OS No. 4 of 1973 filed by 4th defendant against him and others seeking partition of the joint family properties was dismissed as adjusted out of Court. Hence the suit is not maintainable. Defendants 2, 5 and 6 filed a Memo adopting the written statement of 1st defendant. Defendants 3 and 4 remained ex pane.

( 4 ) ON the basis of the above pleadings, as many as 8 issues were settled for trial by the trial Court. In support of their case, plaintiffs examined three witnesses including the first plaintiff as pw1, but did not adduce any documentary evidence. On behalf of defendants, six witnesses including 1st defendant as DW. 1 and 2nd defendant DW4 were examined. Exs. B1 to B12 were marked on their behalf. Exs. Xl and X2 were marked through witnesses. The trial Court held on issues 1 to 3, which relate to question whether there was a partition in 1973; whether the Will dated 15-2-19

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