M.Y. Eqbal, J.

1. This appeal under Clause 10 of the Letters Patent is directed against the judgment dated 07.09.99 passed in First Appeal No. 116/1985(R), whereby the learned Single Judge dismissed the appeal and confirmed the judgment and decree dated 3.8.85 passed by Second Additional Sub-Judge, Giridih decreed the suit in part for partition of the suit properties to the extent of 1/7th share only. The plaintiffs/appellants aggrieved by the said judgments and decree filed the instant Letters Patent Appeal.

2. The plaintiffs/appellants case in short is that one Anant Ram was the common ancestor of the parties. He had two sons namely Mahadeo Lal and Fagu Lal and they constituted a joint Hindu Mitakshara family of which Anant Ram was the Karta. The joint family carried on business in the name and style of M/s. Anant Ram Mahadeo Lal, Shri Anant Ram died in the state of jointness leaving behind his son Mahadeo Lal and Fagu Lal who succeeded him and subsequently Mahadeo Lal died leaving behind two sons namely Behari Lal Jalan and Chhedi Lal Jalan. Fagu Lal also died leaving behind three sons namely Basant Lal Jalan, Jwala Prasad Jalan and Banwari Lal Jalan. Behari Lal Jalan died issueless. Plaintiffs further case was that joint family of Chhedi Lal Jalan and son of Fagu Lal Jalan disrupted in the year 1964 and the movable and immovable properties of the joint family was partitioned by metes and bounds between Chhedi Lal Jalan on the one hand and Basant Lal Jalan and others on the other hand by virtue of registered deed of partition dated 01.08.1964. Thereafter. Chhedi Lal Jalan said to have come in possession of his own share of the properties allotted to him and similarly the sons of Fagu Lal came in possession of the share of properties allotted to them. Plaintiffs further case was that three sons of Fagu Lal Jalan could not continue joint for long due to differences and consequently there was a partition between them also by virtue of partition deed dated 28.7.1965. One Ghanshyam Das Jalan who is one of the sons of Jwala Prasad Jalan was taken in adoption by Shri Basant Lal Jalan by registered deed of adoption and by virtue of another registered deed of partition dated 28.7.1965 the movable properties which had been allotted to the share of sons of Fagu Lal were divided into three separate shares and Takhtas and 1/3rd share was allotted to Basant Lal Jalan and his adopted son Ghanshyam Das Jalan and 1/3rd Takhta each was allotted to Jwala Prasad Jalan Banwari Lal Jalan. The properties allotted to the Takhta of Sri Jwala Prasad Jalan and his sons were set forth in Schedule "Kha" of the said deed of partition which are mentioned in Schedule A excluding the lands of village Koldiha which were sold away by Jwala Prasad Jalan to Srimati Bindhya Devi by a registered Sale Deed dated 02.01.1969. It was alleged that Sri Jwala Prasad Jalan and his sons had been coming in possession of the properties mentioned in the Schedule A of the plaint. Plaintiffs sought partition from defendants in respect of the house situated within the Giridih Municipality. Plaintiffs claimed 1/7 share in the said property.

3. The case of the defendants/respondents is that the suit is not maintainable. It is stated that Jwala Prasad Jalan, father of the plaintiff and defendants being the Karta had sold the lands in favour of Smt. Vindhya Devi by registered sale deed and the sale proceeds was appropriated for joint family business. It is incorrect to state that Jwala Prasad Jalan, the defendant No. 1 and his sons, plaintiff and defendant Nos. 2 to 4 are still continuing as members of joint family and they are coming in joint possession of the properties. The defendant No. 2 separated from the said joint family in the business on 20.7.1974. The joint property at that time had one wholesale cloth business known as M/s. S.M. Textiles, and one retail cloth shop known as Mamta Textiles. The retail shop Mamta Textiles was allotted to the share of Panna Lal Jalan