Poonam Srivastav, J

1. The instant appeal arises out of the judgment and decree dated 29.5.1993 and 10.6.1993 respectively passed by Shri Mahendra Narayan Singh, 2nd Additional Subordinate Judge, Jamshedpur in Partition Suit No. 122 of 1990.

2. The suit was filed for partition of the joint Hindu family properties which consists of 13 properties. The plaintiff instituted the suit on the ground that common ancestor of the parties Nanji Govindji Taunk died on 25th March, 1955 and all the aforesaid 13 properties are joint Hindu family property and, the plaintiff and defendants are co-sharers. The plaintiff claimed that the properties are liable to be partitioned. The plaintiff claimed following reliefs:-

(a) For a preliminary decree for 1/7th share in the properties described in Schedule 'B'

(b) For appointment of a survey knowing pleader commissioner to demarcate the plaintiff's 1/7th share in the said Schedule "B" properties;

(c) For a final decree on the basis of the pleader commissioner's report and allotment chart;

(d) For costs of the suit;

(e) For any other relief or reliefs to which the plaintiff may be entitled under law and equity.

3. Nanji Govindji Taunk left behind his widow i.e. 2nd wife Jetu Bai and four sons from the wedlock and three sons from the wedlock of 1st wife Heji Bai, who predeceased her husband in the year 1920. The genealogical table of late Nanji Govindji Taunk, at the time of institution of the partition suit is detailed below-

NANJI GOVINDJI TAUNK

(Died on 25.3.1955)

Heji Bai Jetu Bai

(Predeceased in 1920) (Died on 5.6.1974)

3 sons 4 sons

Ranchhod N. Taunk Shyamji N. Taunk Lakshman N. Taunk Govardhandas N. Taunk

(Died on 27.5.79) (Def. No.4) (Died on 11.10.73) (Plaintiff)

*Ratilal R. Taunk-son *Girish L. Taunk-son *Balram N. Taunk

(Def. No. 10) (Def. No.5) (Def. No.1)

*Jayant R. Taunk-son *Nagilal L. Taunk-son *Nandlal N. Taunk

(Def. No. 11) (Def. No.6) (Def. No.2)

*Jayo-daughter *Nitin L. Taunk-son *Hansraj N. Taunk

(Def. No. 12) (Def. No.7) (Def. No.3)

*Most. Kokila-daughter *Most. Manjula-daughter

(Def. No. 13) (Def. No.8)

*Pushpa-daughter *Hansa-daughter

(Def. No. 14) (Def. No.9)

*Renu-daughter

(Def. No. 15)

*Raji Bai-widow

(Def. No. 16)

4. All the brothers were arrayed as defendants in Title (Partition) Suit No.122 of 1990. The suit was decreed in respect of Item Nos. I, II, III and V holding that these properties i.e. Item No. I-Holding No. 70, Contractor's Area, Bistupur, Jamshedpur; Item No. III-Holding No. 105, Contractor's Area, Bistupur, Jamshedpur and Item No. V is No.6, S.B. Shop Area, Bistupur, Jamshedpur are joint and therefore, the plaintiffs and the defendants are all entitled for an equal share (1/7th share) in the said property. (So far the findings in respect of Property Nos. I, II, III and V are concerned, there is no dispute between the present plaintiff-appellants and the defendant-respondents.

5. The suit was dismissed in respect of Property No. IV-Nalanda Hotel, S.B. Shop Area, Bistupur, Jamshedpur; Item No. VII-All House Properties (one godown on "N" Road, West near Khalsa Club, P.S.-Bistupur, Jamshedpur. Item No. VI-Natraj Building, Bistupur, Jamshedpur; Item No. VIII-TMG 10 and 11, Bistupur, Jamshedpur; Item No. IX-Godown at Northern Town, Bistupur, Jamshedpur; Item No.X-House at Khasmahal, Jugsalai, Jamshedpur; Item, No. XI-Land measuring 2068 acres at Asanboni, Chandil; Item No. XII-Land measuring 1.02 acres at Pardih, Mango, Jamshedpur and Item No. XIII-Land measuring 65ft. x 45ft., Falidih, Raipur, M.P. were held as not joint family properties.

6. One written statement was filed on behalf of defendants No. 1, 2 & 4; two separate written statements were filed on behalf of defendant No.3 and defendant No.10. Defendants No.5, 6 and 7 did not file their written statement and did not contest the suit. The plaint was amended after the entire evidence was recorded on 16th March, 1993 and the amendment was incorporated. Subsequent to the aforesaid amendmen