Mungeshwar Sahoo, J.

1. The Plaintiffs have filed this First Appeal against part of the judgment and Decree dated 21.09.1996 passed by the learned Sub-Judge IInd Jamui in Title Suit No. 29 of 1980 whereby the learned Court below dismissed the suit for partition with regard to the house standing on plot No. 377 measuring 93 decimal and the properties standing in the name of Defendant No. 5, Indu Devi.

2. The Plaintiffs-Appellants filed the aforesaid Title Suit No. 29 of 1980 claiming for partition of their 1/3rd share in the suit properties mentioned in detail in Schedule II and III of the plaint. The Plaintiffs case in short is that the common ancestor Babu Sarjug Pd. Singh died in the year 1975 leaving behind his 3 sons, namely, Sri Tripurari Pd. Singh (Defendant No. 1), Brij Bihari Singh, Defendant No. 2 and Awadh Kishore Singh, the Plaintiff No. 1, and one daughter, namely, Uma Shashi. The said Babu Sarjug Pd. Singh had also grand sons and grand daughters who are Defendants in the suit. The son of Plaintiff No. 1, namely Arunesh Kumar Singh is Plaintiff No. 2. It appears that during the pendency of the suit, the Defendant No. 1, Tripurari Singh died and his legal representatives have been substituted. The further case is that the parties are members of Hindu Joint Family and the Defendant No. 1 is Karta and Manager since during the life time of late Sarjug Pd. Singh as he is the eldest son and well educated and wise person. Sarjug Prasad Singh owned and possessed moveable and immovable properties, ancestral as well as acquired from money lending business and joint family fund. The joint family had and has sufficient nucleous to acquire those properties, the details of which has been mentioned in Schedule II and III. The joint family has also Jamindari interest at village Marpa, Bhagalpur and village Amba Sarari, Distt. Munger and thus the family have some income from the Jamindari also.

3. The further case is that when the old ancestral residential house was found not sufficient, a new residential house was constructed on plot No. 377 under Khata No. 64 with the joint family fund. The Plaintiff and late Sarjug Prasad Singh were residing in the new building since February, 1973. The Defendant No. 2 continue to reside in old residential house in plot No. 526 under Khata No. 129. The Defendant No. 1 as karta of the family let out a portion of the newly constructed building to soil conservation Department on monthly rent on Rs. 330/- from January, 1978. The properties are joint family properties and the parties are in joint possession, therefore, there is unity of title and unity of possession over the properties. However, recently, the Plaintiff No. 1 learnt that the Defendant No. 1 has managed to get the name of his wife Defendant No. 5, Indu Devi, introduced as landlord with regard to the portion wherein tenant was inducted. The Plaintiff No. 1 also came to know that the Defendant No. 1 has intentionally got the joint family fund diverted to his own benefit by getting the same deposited in his own name as well as in the name of his wife, son and daughters. The aforesaid Act caused suspicious and, therefore, the Plaintiffs demanded partition of the suit properties which was refused. The Plaintiff being the most junior member of the family has No. knowledge of all the joint family properties and whenever he will come to know about the same he will add the same. Since the demand of partition was refused, the Plaintiffs filed the present suit claiming 1/3rd share.

4. The Defendant No. 1, Tripurari Prasad Singh and his wife, Defendant No. 5, Indu Devi, filed a joint contesting written statement. Defendant No. 2 did not contest the suit. The heirs of daughter of Sarjug Prasad Singh also did not contest.

5. The main defence of the Defendant No. 1 and 5 is that the parties are not the members of joint Hindu family. The Defendant No. 1 was never the karta of joint family as alleged by the Plaintiffs. According to these Defen