JUDGMENT :

Against the judgment dated 22.03.1999 and decree dated 31.03.1999 passed by the Subordinate Judge-2nd, Kaimur at Bhabhua in Title (Partition) Suit No. 65/1992 dismissing the suit on contest but without cost, is the subject matter of instant appeal at the behest of plaintiffs/appellants.

2. For better appreciation, the status of the parties is being recognized according to their status having before the lower court.

3. Plaintiffs/Appellants filed a suit for partition asking for 1/3rd share in a property left by his mother and ¼th share in remaining duly furnished under scheduled “Ka, Kha, Ga” respectively, furnishing a genealogical table showing the common ancestor, Jagannath Pandey (since deceased) having a son, Ram Nagina Pandey (defendant no.1) who has got three sons, Krishna Pandey (plaintiff no.1), Parshuram Pandey and Sudarshan Pandey (defendants). Krishna Pandey has got a son, Ashok Pandey, plaintiff no.2, while Parshuram Pandey has got four sons, namely, Pappu Pandey, Manoj Pandey, Akhileshwar Pandey and Sunil Pandey. Sudarshan Pandey has four sons, Guddu Pandey, Santosh Pandey, Saheb Pandey and Arun Kumar Pandey (defendants). Malti Devi, wife of Parshuram Pandey and Chandrakala Devi, wife of Sudarshan Pandey (Defendant Nos. 12 and 13) have also been impleaded on account of deed of gift executed by Ram Nagina Pandey (Defendant No.1) in their favour relating to joint Hindu Family. Certain properties so detailed stood purchased also in their name. Furthermore, it has also been pleaded that though for the convenience sake, they are separate in mess and business but, no partition has been effected by metes and bounds and that being so, majority of the properties are being conjointly managed. Also disclosed that acquisition of Schedule “Kha” property (moveable) has been out of savings of the joint fund. Then averring the legal requirements relating to cause of action, payment of court fee and further, whispering relating to execution of deed of gift in favour of Malti Devi and Chandrakala Devi by Ram Nagina Pandey with regard to the properties belonging to the joint family whereupon, could not be binding upon the plaintiff as being fraudulent one and further never been followed up, hence, asked for identification of his 1/4th share in Schedule “ka”, “kha” while 1/3rd share relating to Schedule “Ga” followed with appointment of pleader commissioner, carving out separate Patti to that extent, delivery of possession, cost of the suit.

4. There has been separate WS on behalf of defendants. It has specifically been pleaded at the end of defendant no.1 (father) that the story so propounded at the end of the plaintiff that for convenience sake they became separate in mess and business is palpably false rather, much before 1981, there has been disruption of joint family followed with partition by metes and bounds, orally and carrying the same for years together, the same was duly acknowledged by way of registered memorandum of partition dated 01.04.1991 properly identifying the schedule containing the description of the properties having allotted to the different share-holders including the plaintiff. In likewise manner, the claim of the plaintiff relating to Schedule “kha” (movable one) has also been controverted by way of stating that the female who got the ornaments at the time of marriage remained with them as their ‘Stridhan’. It has also been submitted that at the time of purchase of tractor certain lands were hypothecated belonging to other two sons namely, Parshuram Pandey and Sudarshan Pandey and, during course thereof, probability of land belonging to the plaintiff given under hypothecation could not be ruled out but, the same happens to be mere a mistake, a bona fide mistake caused on account of non verification. It has then been pleaded that out of affection and love as well as service rendered by his daughter-in-law, namely, Malti Devi wife of Parshuram and Chandrabaso Devi wife of Sudarshan Pandey, he had gi