Mungeshwar Sahoo, J. – The defendants have filed this First Appeal against the judgment and decree dated 02.02.1980 passed by the learned 3rd Additional Subordinate Judge, Siwan in Title Suit No.38 of 1971/10 of 1979 whereby the learned court below decreed the plaintiff’s suit in part.

2. The plaintiffs-respondents filed the aforesaid suit claiming partition of his half share in the suit properties described in Schedules. The plaintiff’s case in short is that one Mahabir Ahir died leaving behind his two sons, Ramanandan Chaudhary and Ramadhari Chaudhary. The plaintiffs are the descendants of Ramanandan Chaudhary whereas the defendants are the descendants of Ramadhari Chaudhary. Ramadhari Chaudhary also died in jointness. During lifetime, Mahabir Chaudhary was the karta and after his death, Ramadhari Chaudhary became the karta and on the death of Ramadhari, the defendant No.1 Narsingh Chaudhary i.e. son of Ramadhari became the karta of the family. There was separation between both the branches just three months before the filing of the suit but there had been no partition by metes and bounds.

3. The further case of the plaintiffs is that the joint family properties were very fertile and there was sufficient income out of which some properties were acquired by sale deed and also by Zerpeshgi deed. The Schedule-1 properties are the ancestral property. The properties which were purchased out of joint family income are described in Schedule-2. The homestead properties have been described in Schedule-3 whereas the Zerpeshgi properties have been described in Schedule-4. The other properties with their details and income thereof have been mentioned in Schedule 5 to 7. There is unity of title and possession and the plaintiffs therefore, claimed half share in the suit properties.

4. The defendants filed contesting written statement. Their main case is that in fact, after the death of Mahabir, Ramanandan Chaudhary, the original plaintiff No.1 was the karta. After death of Mahabir, the two sons separated themselves although, there was no partition by metes and bounds. Since the joint family lands were not fertile and the joint family was facing economic hardship, the defendants went to Calcutta for earning. By their hard labour, they were earning money and out of their savings they were sending the money to Ramanandan Chaudhary, the original plaintiff No.1. Out of the said money, Ramanandan Chaudhary acquired properties by sale deeds and Zerpeshgi deed and thereafter, the defendants returned in the year 1968. When they desired to cultivate their lands separately, some dispute arose and then there was a partition through panchayati between the parties in the month of January, 1968. In this partition, the ancestral property and the properties which were purchased jointly during lifetime of Mahabir Chaudhary were partitioned half and half. Schedule 1(ka) lands to the written statement were allotted to the defendants whereas the lands of Schedule 1(kha) were allotted to the plaintiffs. The properties which were purchased after death of Mahabir Chaudhary were also partitioned wherein the plaintiffs got 1/4th share and the defendants got 3/4th share. The properties allotted to defendants are mentioned in Schedule 2(ka) of the written statement and the properties allotted to plaintiffs are mentioned in Schedule 2(kha) of the written statement. The homestead property i.e. Schedule-3 property were also divided according to the shares. The properties mentioned in Schedule-4 is concerned, it is the case of the defendants that these properties remained in possession of those persons in whose name, the Zerpeshgi stood. The defendants further denied the existence of Schedule 5 to 7 properties. The defendants also pleaded that some properties have not been included in the suit, as such, the suit is bad for partial partition and further, the lands purchased by the defendants along with the plaintiffs wherein the plaintiffs have got only 1/4th share. In the