MUNGESHWAR SAHOO, J.:–Contesting defendants have filed first appeal against the judgment and decree dated 17.04.1985 passed by the learned 4th Additional Subordinate Judge, East Champaran, Motihari in Partition Suit No.119 of 1980/130 of 1984 whereby the plaintiff-respondent’s suit for partition has been decreed with cost.

2. The plaintiff-respondent filed the aforesaid suit for partition claiming 1/25th share in Schedule II of the plaint and 1/5th share in the property described in Schedule II (ka).

3. The plaintiff-respondent claimed the aforesaid relief alleging that one Malhar Rai had five sons, namely, Dayal Rai, Kalyug Rai, Bhagwat Rai, Mathura Rai and Dhanukh Rai. The branch of Dayal Rai is represented by defendant nos.20 to 26. The plaintiff represent branch of Mathura Rai @ Methur Rai. Methur Rai is defendant no.6 and his two sons are defendant nos.7 and 8. Plaintiff is son of defendant no.7. The other defendants are from the branch of Kalyug Rai, Bhagwat Rai and Dhanukh Rai (for the purpose of deciding this appeal it is not necessary to describe the genealogy given in the plaint in great detail) and the defendant 2nd sets are purchasers. It appears that the court below has described in detail, therefore, it is not dealt with in detail.

4. The plaintiff’s further case is that all the suit property is joint family property. The five sons of Malhar Rai only separated in mess, residence and cultivation in the year 1936 but the separate cultivation was according to their convenience. There had been no partition by metes and bounds. However, out of their separate income each branch dealt with separately and acquired properties. The defendant nos.6 to 8 filed Partition Suit No121 of 1963, which was dismissed for default and in fact it was collusive suit.

5. It appears that in the year 1983 amendment application was filed by the plaintiff and added Schedule II (ka) property. This amendment was allowed on 09.02.1983. The plaintiff claimed that this Schedule II (ka) property is the joint family property acquired out of joint family fund.

6. The defendant nos.1 to 5 and 9 to 19 filed supporting written statement claiming 1/5th share for defendant nos.1 to 5, 1/5th share for defendant nos.9 to 16, 1/5th share for defendant nos.17 to 19 and stated that the plaintiff and defendant nos.6 to 8 are entitled to 1/5th share and the defendant nos.20 to 26 have got 1/5th share. They only disputed the genealogy saying that Malhar Rai had six sons. The name of first son was Dhyan Rai. However, according to him he died prior to 1934.

7. The main contesting defendants are defendant nos.20 to 26 who represent the branch of Dayal Rai. Their case, in short, is that there had already been partition by metes and bounds between the sons of Malhar Rai in the year 1924 and since then the parties were messing separately, residing separately after constructing houses and cultivating separately and they have acquired separate lands also. The separation in the year 1936 alleged by the plaintiff is denied. According to them, the properties acquired after partition are the self-acquired property of each branch.

8. On the basis of the aforesaid pleadings of the parties the trial court framed the following issues:—

(i) Is the suit as framed maintainable?

(ii) Whether the plaintiff has got valid cause of action or right to sue?

(iii) Whether there is unity of title and unity of possession between the parties with respect to the suit land?

(iv) Whether the suit is hit by the principle of resjudicata and barred by law of limitation and there by liable to be dismissed?

(v) Whether partition by metes and bound took place in the family in the year 1924?

(vi) Whether R.S. Plot No.5797 and 6403 are self acquired property of Dayal Rai?

(vii) Whether the plaintiff is entitled to a decree for partition as claimed?

(viii) To what relief or reliefs, if any, is the plaintiff entitled?

9. The trial court on the basis of materials and evidences recorded the findings that there had been n

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