The plaintiffs-appellants have filed this first appeal against the judgment and decree dated 16.12.1995 passed by the learned Sub-Judge-I, Bhabua in Title Suit No.149 of 1993 whereby the learned trial court dismissed the plaintiffs’ suit for partition.

2. The plaintiffs-appellants filed the aforesaid suit claiming 1/3rd share in the suit property. The simple case of the plaintiffs is that Nageshwar Mishra, the common ancestor, had four sons, namely, Late Harihar Mishra, Late Nand Kishor Mishra, Late Badri Nath Mishra and Late Ram Kishor Mishra. The plaintiffs are the descendents of Late Badri Nath Mishra. All the properties of Nageshwar Mishra were partitioned by registered deed of partition dated 02.01.1990 between the four branches. In this partition the share of four branches were defined to the extent of 1/4th in the property of Nageshwar Mishra. Out of four branches, Praduman Mishra, son of Late Nand Kishor Mishra took away his 1/4th share by partitioning the properties by metes and bounds. The rest three branches remained joint. There had been no partition between them. If defendants have created any document, it is forged and fabricated document is not binding on the plaintiffs. The plaintiffs have got 1/3rd share in immovable properties described in Schedule-“Ka” and 1/3rd share in movable properties described in Schedule-“Kha”.

3. The defendant nos.1 to 3 on being noticed appeared and filed contesting written statement. They admitted the registered partition dated 02.01.1990. They also admitted separation of Praduman. The main defence is that after the registered partition there was oral partition between the three branches and memorandum of partition was prepared on 13.08.1991 and since then the parties are separate by metes and bounds and there is no unity of title and possession between the parties. The parties have acted according to this partition between the three branches and the parties have sold many properties by registered sale deeds. Plaintiff no.2 has also sold land to Dularmani Devi, wife of Satendra Kumar Mishra. Plaintiff no.3 also sold lands to others wherein they referred the partition of the year 1990. Since the house at Varanasi was joint family property, it was allotted in favour of plaintiffs as the plaintiffs were residing at Varanasi which was indicated in schedule of the Yadast partition.

4. The defendant no.6 filed separate written statement supporting the case of defendant nos.1 to 3.

5. On the basis of the aforesaid pleadings of the parties the learned trial court framed the following issues:-

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs got any valid cause of action for the suit?

(iii) Is the suit barred by law of limitation, waiver, acquiescence and principle of estopple?

(iv) Whether there is any unity of title and possession between the parties?

(v) Whether the memorandum of partition dated 13.08.1991 is legal, valid and genuine?

(vi) Whether the plaintiffs are entitled to get the suit property be partitioned?

(vii) Any other relief or reliefs for which the plaintiffs are entitled?

6. After hearing the parties, the learned trial court came to the conclusion that there had already been previous partition by metes and bounds between the three branches also and, accordingly, dismissed the plaintiffs’ suit.

7. The learned Senior Counsel Mr. T.N. Maitin appearing for the appellants submitted that Ext.A, the so-called memorandum of partition, in fact a partition deed, therefore, it requires registration and for non-registration thereof it is inadmissible in evidence. According to the learned Senior Counsel, Ext.A is not signed by plaintiff no.2 and, therefore, it is not a valid document. In fact the document is fabricated and created document which could not have been relied upon by the trial court, as such, the judgment of the trial court is vitiated. The learned Senior Counsel further submitted that the references made in the registered sale deed refer to the registered par