Shiva Kirti Singh, J.

1. This first appeal preferred by defendants Nos. 1, 2 and 8 is directed against the judgment and decree dated 30.11.1977 passed by Sri S.N. Sinha, 1st Additional Subordiante Judge, Motihari in Partition Suit No. 426/1970/167/1976 whereby the trial Court has decreed the suit of the plaintiff-respondent No. 1 for partition of properties described in Schedules I, II and III of the plaint as per share claimed by the plaintiff.

2. In this case, there is no dispute with regard to material part of genealogy as given by the plaintiff or with regard to extent of her share. According to the plaintiff, her grandfather Shah Md. Karim @ Shah Pawaloo had one son Shah Riyazuddin, one daughter Bibi Newazan Bibi Kitaban, defendant No. 1 is widow of Shah Riyazuddin and mother of the plaintiff Jautunissa. Bibi Hajra Defendant No. 2 is the only sister of the plaintiff and defendant No. 8 Syed Anwarul Hassan is husband of Bibi Hajra, According to the plaintiff, Schedule-I properties are properties left by her grandfather Shah Pawaloo which were inherited by his son who got 2/3rd share and by his daughter who got 1/3rd share but the daughter Bibi Newazan died issueless. Although the plaintiff claimed 2/9 share in Schedule 1 properties but upon calculation the trial Court found her share to be 7/18 in Schedule 1. Schedule-II properties exclusively belonged to Syed Riyazuddin in which the plaintiff claimed 1/3 share but the trial Court upon calculation has found her share to be 7/16. With regard to the properties detailed in Schedule-III of the plaint there, is no dispute that the same were purchased by the plaintiff and defendant No. 2 jointly under a sale-deed dated 22.11.1944 wherein the plaintiff claimed 1/2 as her share and the same has been found correct by the trial Court.

3. The plaintiff claimed that the properties mentioned in the schedules are still joint and she is not getting her due share in spite of request for amicable partition and hence, the suit.

4. Defendant Nos. 1 and 2 filed a written statement wherein they denied unity of title and unity of possession between the parties in respect of suit properties. The properties detailed in Schedules I and II are admitted to be properties belonging to Md. Karim @ Shah Pawaloo and his son respectively. Schedule III properties are also admitted to be joint purchase of plaintiff and defendant No. 2 and only their description have been corrected in the written statement. The legal share of the plaintiff in suit properties has not been challenged but it has been asserted that the plaintiff has no title over the said properties. According to these defendants, the properties belonging to Shah Karim and Shah Riyazuddin had already been privately partitioned between the parties on 1.1.1954 and the sister of Shah Riyazuddin Bibi Newazan executed a deed of gift of her separate share in favour of defendant No. 2 by a registered document and put defendant No. 2 in possession over her properties. The details of the alleged gifted properties have been given in Schedule-I of the written statement. With regard to the share of the plaintiff, it has been alleged that she sold her share on 31.8.1970 through three sale-deeds to Syed Anwarul Hassan, defendant No. 8 and husband of defendant No. 2 and as a purchaser Anwarul Hassan is in possession of the same.

5. It appears from the record of the case that Anwarul Hassan opted and prayed to be a party in the suit at a very late stage on 6.10.1977, and he filed his written statement on 10.10.1977 when the evidence on behalf of the plaintiff was already over. From the order dated 8.10.1977 it appears that the Court treated defendant No. 8 to be a purchaser during the pendency of the suit and, therefore, declined to hear arguments on question of court fee with regard to the properties claimed by defendant No. 8 and on that basis decided to treat the suit as a pure suit for partition. However, from the three sale-deeds filed on behalf of