The finding of fact based on conflicting evidence must weigh with the appellate court, especially when based on oral evidence recorded by the trial judge. An appeal does not lie against mere findings unless they amount to a decree or order.

Mungeshwar Sahoo, J.

1. The defendant Nos. 2 to 5 have filed this appeal against the judgment and decree dated 20th July 1985 passed by Sri Danial Borla the learned 3rd Additional Subordinate Judge, Gopalganj in Title Suit No. 133 of 1978 dismissing the plaintiff respondent No.1s suit for partition.

2. The plaintiff respondent No.1 Smt. Phulpati Devi filed the aforesaid Title Suit No. 133 of 1978 against Smt. Rampati Devi. Originally only Rampati Devi was the defendant. It appears that subsequently the purchasers from defendant No.1 Rampati Devi were added as defendant Nos. 2 to 5. It further appears that subsequently the defendants 2nd set namely Brija Lal, Bhukh Lal, Jugal Lal and Awadhesh Lal were also added.

3. The plaintiff Phulpati Devi filed the suit claiming half share in the suit property alleging that Rajbali Lal who is father of plaintiffs and defendant No.1 was owner of the suit property. He died in 1968 leaving behind his widow Phekna Kuer and the plaintiffs and defendant No.1. Subsequently Phekna Kuer also died and the plaintiffs and defendant No.1 became the joint owner of the suit property as Rajbali Lal and Phekna Kuer had no male issue. Therefore, the plaintiffs claimed half share in the suit property.

4. The defendant No.1 filed contesting written statement. Her main defence is that her mother Smt. Phekna Kuer succeeded to the entire property of Rajbali Lal after his death and then she gifted the land of Rajbali Lal to the plaintiff and defendant i.e. her two daughters by a registered gift deed and according to that gift the defendant No.1 Rampati Devi got 4 bigha 1 kattha 15 ¾ dhur out of the suit property and Phulpati Devi, the plaintiff got 18 kattha 14 ¼ dhur only. Therefore, there is no unity of title and possession between the parties. She has sold entire property which she got through the gift deed to the defendant No.2 to 5, who are in possession.

5. The defendant Nos. 2 to 5 also filed separate contesting written statement. Their main defence in short is that Rajbali Lal never died in 1968 rather he died 26-27 years ago. According to them he died prior to Hindu Succession Act, 1956 came into force. Therefore, Phekna Kuer only inherited the property. Thereafter after coming into force of Hindu Succession Act, 1956 she became the absolute owner. On 31.3.1971 she executed a registered gift deed in favour of plaintiff and defendant No.1 as stated by the defendant No.1 in her written statement. The defendant No.1 sold her property which she got through the gift deed to the defendant Nos. 2 to 5 by executing two registered sale deeds dated 1.11.1978. After purchase they are coming in separate and exclusive possession of the property which they have purchased. There is no unity of title and possession between the parties.

6. The defendants 2nd set filed separate contesting written statement. Besides taking various legal pleas their main defence is that the father of Rajbali Lal were four brothers namely, Naubat Lal, Ganga Lal, Daulat Lal and Ram Baran Lal. There had been no partition between the said four brothers and still the khatiyan is joint. Naubat Lal gifted his 1/4th share to Rajbali Lal. The heirs of Daulat Lal and heirs of Ram Baran Lal sold their share to Bhukhal Lal. Lal Babu alias Lallan Prasad sold the land to Awadhesh Prasad. In view of these facts unless all of them are made party defendants in this suit, the partition suit will not proceed as it is bad for non-joinder of necessary party. Their further case is that Rajbali Lal had three daughters namely Smt. Phulpati Devi, the plaintiff, Smt. Rampati Devi i.e. defendant No.1 and third daughter namely Panmati Devi. Lal Babu alias Lallan Prasad is the son of this third daughter of Rajbali Lal. Panmati Devi was married with Ayodhya Prasad who is own brother of Hridaya Lal. Hridaya Lal is the husband of defendant No.1 Rampati Devi. Rajbali Lal died in 1967 leaving behind his widow Most. Phekna Kuer and two daughters i.e. the plaintiff a