Narayan Roy, J.

1. This Letters Patent appeal is directed against the judgment and decree dated 1.10.1991, passed by a learned single judge of this Court in First appeal No.113 of 1986 (R), whereby the appeal filed by the defendants has been allowed and the suit has been dismissed holding that there had already been a partitition and as such the suit for partititon instituted by the plaintiffs-appellants was not maintainable.

2. The plaintiffs-appellants filed Partition Suit No.65/84 / 27/84 praying for partition of their half share in the suit properties stating therein, interalia, that the parties were the descendants of one Gendo Koeri, who had two sons, namely, Lalit Koeri and Ramchander Koeri. The defendants are the descendants from the Branch of Lalit Koeri, whereas the plaintiffs are from the Branch of Ramchander Koeri. Lalit Koeri had three sons, namely, Puran Koeri (who died issueless), Bhikhwa koeri and Jugal Koeri, whereas Ramchander Koeri had only one son, namely, Kehri Koeri, who died leaving behind his son, the plaintiff no.1 (appellant no.1)Moti Koeri and plaintiff no.2 (appellant no.2)Smt. Harli Devi is the wife of plaintiff no.1. Since the plaintiff no.1 represented the branch of Ramchander Koeri, one of the sons of Gendo koeri, he claimed half share in the suit properties. The plaintiffs had brought the suit in question only for partition of the lands, appertaining to khata no.92, of village Bajato and it was mentioned in the plaint that the lands appertaining to khata No.105 were already partitioned half and half between the plaintiffs and the defendants.

3. According to the plaint, the case of the plaintiffs is that the parties are governed under the Mitakshra School of Hindu Law and owing to the growth in the family, the recorded tenants, the parties to the suit, separted in mess and cultivation. The parties also started cultivating the suit lands separately for the sake of convenience, but there was no partition in the family by metes and bounds. However, plaintiff no.1 sold a piece of land, measuring 4.22 acres for legal necessity in favour of plaintiff no.2, out of his amended share and put her in possession. Thereafter, the name of plaintiff no.2 was mutated and she remained in peaceful possession.

4. The further case of the plaintiffs is that although in the survey record of rights some plots are shown to be in Kabjawah of some parties and some plots in the kab-jawari of other parties and some plots are shown as Shamilat, but such Kabjawari entry was never adhered to and the parties are still joint cultivating merely as per convenience and since there was no partition of the family properties by metes and bounds, the plaintiffs were facing certain difficulties in improving the lands and, therefore, they requested the defendants to partition the suit properties half and half.

5. The case of the defendants, as stated in the written statement, inter alia, is that the sons of Lalit Koeri on the one hand and Kehari Koeri on the other hand, partitioned the land of Khata nos.92 and 105 of village Bajto half and half by metes and bounds prior to the last survey and settlement operation and, accordingly, separate kabjawari was recorded.

6. The learned trial court, as it appears, upon consideration of the pleadings of the parties and evidence on record decreed the suit holding that there was no partition by metes and bounds in between the parties, so far as the lands of Khata no.92 are concerned. The learned Single Judge of this court, however, held in the first Appeal that since the parties were separate in mess, cultivation and possession and there had been separate transaction of lands, there was a previous partition in the family and the suit in the present form for partition of the properties half and half was not maintainable and the learned trial court has wrongly raised a presumption of jointness of a Hindu family, which was not applicable in the facts and circumstances of this case and it has f