B. N. Agrawal, J.

These two appeals are being disposed of by this common judgment as both arise out of same judgment passed in a first appeal; which was preferred against the judgment and decree passed in one suit.

2. The short facts leading to filing of these appeals are that the plaintiffs filed a suit for partition claiming 5 annas 4 pies share in the suit property and their case, in short, is that one Chaitnath, who was common ancestor of the parties, had three sons, namely, Raghu, Shatrughan and Buka. Plaintiffs are the great grand sons of Shatrughan being the son of Baidyanath and they represent 1/3rd share of Shatrughan in the joint family property. Defendant nos. 1 to 5 are heirs of Buka. Raghu had two sons, namely, Bishambhar and Jagu. Each of the aforesaid three Sons of Chaitnath had 1/3rd shares in the joint family property. It is said that Jagu, who was one of the sons of Raghu, had sold his 2 annas 8 pies share in the joint family property to Brindawan, who belonged to the branch of Buka and thereby Buka's branch had 8 annas share in the Joint family property. Bishambhar, another son of Raghu, had sold his 2 annas 8 pies share to U.C. Roy, the ancestor 'of defendant nos.6 to 10, who in his turn' settled the same with Ghasi Ram, son of Bishambhar. Since the patties felt inconvenience in joint enjoyment of the property and request of partition was turned down, the same necessitated filing of the present suit.

3. In the suit defendant nos. 6 to 9 have filed one written statement and defendant no. 10 has filed another written statement, but their defence is common. These defendants have supported the claim of the plaintiffs and they have made a prayer that their 2 annas 8 pies shale in the suit property be carved out.

4. Defendants 1 to 3 have filed separate written statement contesting the claim of the plaintiffs. These defendants have accepted 2 annas 8 pies share of defendants 6 to 10, but they have contested the claim of the plaintiffs. According to them, before the cadestral survey the three sons of Chaitnath had separated and there was a partition by metes and bounds. It is said that thereafter one branch had no connection with the lands allotted in the share of other branch. It is said that after partition, the parties have been separately dealing with the properties either amongst themselves or with strangers. Hence the suit for partition was liable to be dismissed.

5. The parties to support of their respective cases led evidence in the trial court and the trial court after taking into consideration oral and documentary evidence, adduced on behalf of the parties came to the conclusion, that the contesting defendants failed to prove their case of previous partition and decreed the suit for partition holding that the plaintiffs were entitled to 5 annas 4 pies share in the property described in item no. 1 of the schedule appended to the plaint. So far decree for partition in relation to properties described in other schedules is concerned, the same was refused as the trial court came to the conclusion that those properties were not acquired out of joint family funds.

6. Being aggrieved by the judgment and decree of the trial court. the contesting defendants preferred a first appeal before this Court being First Appeal No. 89 of 1979 (R) in which on behalf of the plaintiffs a cross-objection was filed against that portion of the trial court's decree by which their claim for partition in relation to some of the properties bad been rejected. A learned single Judge of this Court allowed the appeal and set aside the judgment and decree passed by the trial court after recording finding that there was a previous partition in the family of the parties, as such, the plaintiffs were not entitled to any decree for partition and consequently, the cross objection filed by the plaintiffs was rejected. Hence L.P.A. No. 85 of 1987 (R) has been filed at the instance of the plaintiffs; where as L.P.A. No. 88 of 1987 (R) has bee