Sanjay Kumar, J. – This appeal has been filed against the judgment dated 26.06.1976 and decree dated 07.07.1976 passed by 4th Additional Sub-Judge, Siwan in Title (Partition) Suit No.160 of 1966/39 of 1976 whereby and whereunder the learned Sub-Judge dismissed the suit which was filed by these appellants.

2. The appellants had filed the suit for partition claiming 1/4th share in scheduled-‘ka’ of the plaint land barring one Bigha and five Katha land out of it as their exclusive land. They have further claimed half share in the land mentioned in Schedule-‘kha’ of the plaint. The case of appellants (plaintiffs) before the court below inter-alia was that one Banshraj Choubey was common ancestor of the plaintiffs and the defendants who died leaving behind four sons, namely Arahat Choubey, Bishuni Choubey, Atma Choubey and Ramcharan Choubey. The branches of two sons namely, Bishnu Choubey and Atma Choubey became extinct prior to cadastral survey and the share of these two brothers devolved upon the remaining two brothers in the manner as stated hereinafter. The defendant second party, i.e., defendant nos. 9 to 15 who are respondents third party before this Court have half share in the land of scheduled-‘ka’ excluding one Bigha and five Kathas. Their further case is that Ramcharan Choubey died leaving behind three sons, namely Rikesh Choubey, Deoraj Choubey and Jairam Choubey. Out of them Jairam Choubey died issueless and his share devolved upon his remaining two brothers namely Rikesh Choubey and Deoraj Choubey having equal share therein. It is said that two sons of Ramcharan Choubey separated from each other and started cultivating the land separately as per convenience. The defendant nos. 1 to 8 are descendents of Deoraj Choubey and plaintiffs are descendents of Rikesh Choubey. It has been further stated that Rikesh Choubey had two sons, namely Inrason Choubey and Pancha Choubey. Out of them Inrason Choubey died leaving behind his widow Basgita Kuer in the state of jointness with his brother Pancha Choubey. They have further asserted that Most. Deomurta Kuer widow of Ganpat Choubey and daughter-in-law of Atma Choubey orally sold one Bigha five Kathas land to Basgita Kuer. The said land was accordingly recorded in her name during revisional survey. After the death of Basgita Kuer the properties left by her came in possession of plaintiffs. They have further stated that after the death of Ganpat Choubey and Deomurta Kuer, the remaining land devolved on Arahat Chaubey and Ram Charan Choubey to the extent of half each. The plaintiffs are widow and sons of Rampukar Choubey. The plaintiffs have further asserted that Ramdhani Choubey and Ramakar Choubey died issueless in state of jointness with the original plaintiff Rampukar Choubey and so the plaintiffs are entitled to 1/4th share in the property of Rikesh Choubey. The suit properties mentioned in Schedule – ‘Ka’ and ‘Kha’ of the plaint were never partitioned by metes and bounds although the parties were cultivating the land separately as per their convenience. The plaintiffs feeling inconvenience in jointness have filed the suit for partition claiming share in the manner as stated above.

3. The defendant nos.4 and 9 jointly filed their written statement. The defendant nos.14 and 15 have filed their written statement separately. The intervenor defendants no. 16 to 19 also filed their written statement and supported the case of defendant nos.4 and 9. The defendants nos.14 and 15 supported the case of plaintiffs but subsequently left contesting the suit. The suit was contested only by defendant nos.4 and 9 and intervenor defendants nos.16 to 19.

4. The contesting defendants in their written statement, inter-alia, have disputed the correctness of the genealogical table as given by plaintiffs at the foot of the plaint. They have admitted the genealogical table with respect to the plaintiff and defendants. In addition to the existing genealogical table they have stated that Inarson Choubey so