MUNGESHWAR SAHOO, J.:- This First Appeal has been filed by the defendants first party appellants against the Judgment dated 24.9.1974 and the decree following there upon signed on 30.10.1974 by Sri Ram Kishore Singh, the learned 1st Additional Sub Judge, Motihari; in Partition Suit NO.154 of 1968/ 122 of 1970 whereby the learned court below decreed the plaintiff respondents' suit for partition of the suit property described in Schedules - I and II of the plaint to the extent of 1/2 share.

2. To understand the relationship between the parties the admitted genealogy may be reproduced here for easy reference:-

Sundal lal

Kamla Lal Kapildeo Lal Jhingan Lal Rijhan Lal

(D.No.7) (D.No.1) =Ram Yoti Kuar (P.No.3) = Murat Kuar (D,No.8)

Yadunath Prasad= Gayati Devi Anand Mohan) Shambhu Pd.

D.N. 2 (D.No.6) (P.No.1) =Indu Kuar (D.No.9)

Dharmendra Pd. Umesh Prasad

(P.No.2) (P.No.10)

Arun Kuma Ajit Kumar Chotan Kumar

(D.No.3) (D.No.4) (D.No.5)

3. The above genealogy is admitted by the parties. According to the plaintiffs case Sunder Lal had four sons; Kamla Lal, Kapil Deo Lal, Jhingal Lal and Rijhan Lal. The branch of third son, Rijhan Lal are the plaintiffs. The branch of Kapildeo Lal are the contesting defendants first party appellants. The other decendents of two sons of Sunder Lal, i.e., Kamla Lal and Rijhan Lal are defendants no.7 to 10 had not contested the suit. According to the plaintiffs pleading as pleaded in the plaint is that there was dispute and differences between the four sons of Sunder Lal after the death of Sunder Lal. So they had to separate from each other which took place about 25 years ago and then after being separated from each other the first son Kamla Lal and the 4th son, Rijhan Lal remained together and the second son Kamla Lal and the third son, Jhingan Lal remained together jointly. Like this there was partition between the four brothers and the mess and business was divided into two parts. The residential house was also divided into two parts. That state of affairs is still continuing and the plaintiffs are still joint with defendants first set.

4. The further case of the plaintiff-respondents is that Kapildeo Lal is the Karta of the joint family of plaintiffs and defendants first set. The plaintiff no.1 is in Military service. Much property (about 8 bigha) have been acquired out of the income of joint family fund but the plaintiffs came to know that the defendants are creating title regarding those properties acquired in their names out of the joint family fund. The plaintiffs requested for partition to which the defendants did not agree. Hence, the suit.

5. The defendants first set appellants appeared and filed a contesting written statement and also additional written statement. In the written statement they have admitted the partition but have stated that during life time of Sunder Lal he separated his four sons in the year 1941 and a memorandum of partition was prepared. In that partition Sunder Lal himself kept 1 bigha, 6 katha, 14 dhoors of land for his self maintenance. According to that partition the four branches are coming in separate possession of their lands allotted in the partition. These defendants have purchased the properties standing in their names after partition out of their own fund. The defendant no.6, Gayatri Devi, out of her stridhan has acquired property in her own name. The plaintiffs are not joint with these defendants. Hence, they are not entitled to partition and the suit is fit to be dismissed. The defendants also pleaded that the suit is barred by law of limitation and adverse possession besides taking other ornamental pleas.

6. The other defendants did not contest the suit. On the basis of all these pleadings the learned court below framed the following issues:-

I. Is the suit as framed maintainable?

II. Had the plaintiffs got the cause of action or right to Sue?

III. Is the suit barred by law of limitation and adverse possession?

IV. Is the court fee sufficie