The subsequent death of the defendant led to the devolution of the properties to his heirs, impacting the court's decision.

Mungeshwar Sahoo, J.

1. The plaintiff has filed this first appeal against that part of the judgment and decree dated 23.2.1998 passed by Sri Kedar Nath Ambastha, the learned Sub Judge 1st Banka in Title (Partition) Suit No. 28 of 1995 dismissing the partition suit in part.

2. The plaintiff filed the aforesaid suit claiming 1/5th share in the suit property except the property which stands in the name of Kaushalya Devi in which the plaintiff-appellant claimed 1/5tth share.

3. According to the plaintiffs case Manbharan Modi was a common ancestor. He had two sons namely Ishwar Modi and Badri Modi. There had been partition between the two brothers on 13.8.1962 by a registered deed of partition. Therefore, the parities are not concerned with the property of Ishwar Modi. Badri Modi had two wives namely Kaushalya Devi, the first wife and Subhadra Devi, the second wife. Kaushalya Devi died in 1961 leaving behind his two sons and a daughter namely Laxmi Narain, defendant No.4, Sayta Narain, plaintiff-appellant and Manju Devi, the defendant No.15. Badri Modi was defendant No.1 and second wife Subhadra Devi is the defendant No.2 and her son Purshottam is the defendant No.3. The parties are joint and immovable properties are joint family properties. The defendant No.1 is the Karta and the manager and in that capacity he is managing all the properties and their affairs including the shop business on behalf of the members of joint family. The immovable properties detailed in Schedule A at the foot of the plaint were acquired by purchase out of the joint family fund and common nucleus and contribution of all the male members of the joint family in the name of different members of joint family. Some of the suit properties are the ancestral properties. Schedule B properties is also joint family properties. There had been no partition between the parties and, therefore, there is unity of title and possession. Some of the properties have been sold by the defendant - 1st party in favour of defendant - 2nd party. Defendant No.1 is mismanaging the entire suit property therefore, the plaintiff demanded 1/5th share in Schedule A and B properties and 1/3rd share in the property of Kaushalya Devi, the first wife of Badri Modi. The defendants appeared and filed four sets of written statement.

4. The defendant Nos. 1 to 3 filed joint contesting written statement. The defendant Nos. 4, 5 and 15 filed separate written statement. The defendant No. 15 who is sister of plaintiff and defendant No.4 admitted the case of the plaintiff and relinquished her share and interest in the suit property in favour of the plaintiff. Mainly the defendant Nos. 1 to 3 contested the suit. Their defence is that there is no unity of title and possession between the plaintiff and defendant, 1st set. The plaintiff and defendant Nos. 4 and 5 are separate in all respect i.e. mess, residence, worship and business and the defendant No.1 is not the Karta. Their further defence is that there was no ancestral property and all the properties were acquired by defendant No.1 out of his self earning, therefore, the properties are self acquired properties of defendant No.1. He had acquired in his own name and also in the name of his sons and his wives. The business was also started by defendant No.1 in his personal capacity. The defendant No.1 is living separately from the plaintiff since long ago. There is no joint movable property and the details of the properties mentioned in Schedule B are imaginary.

5. The defendant No.4 Laxmi Narain Burnawal filed written statement alone stating that his wife defendant No.5 had acquired the land of Khata No.23 Khasra No. 794 at Mouza Candan out of her Stridhan and constructions have been made and a shop is running which is personal business. The defendant No.1 has got substantial landed property in partition with his brother in the year 1962 but he sold the entire property and out of the sale proceed and the joint family nucleus Schedule A prope