NARASIMHAM, C. J.

( 1 ) THIS is an appeal, by leave, from the judgment of Mohapatra J. in Second Appeal No. 258 of 1954.

( 2 ) THE appellant is the son of one Lakhan-whereas defendants 1 to 3 are the sons of one Nil-moni. Lakhan and Nihmoni are brothers. Lakhan. and his son Udekar (appellant) filed a partition suit (partition suit No. 16 of 1942) in the Court of the-Subordinate Judge of Sambalpur, for partition and separate possession of their eight annas interest in. the joint family property impleading in that suit Nilmoni and his sons (defendants 1 to 3 ). In that suit main defence taken was a previous-partition between the parties by metes and bounds, in respect of the same property. Though this contention was upheld by the two lower courts, on second appeal (S. A. No. 53 of 1944) the Patna High Court decreed the suit for partition holding that there was no previous partition and that the co-sharers were in separate possession of parcels of land by way of convenience. In pursuance of the aforesaid judgment of the Patna High Court, a final decree was drawn up on the 23rd February, 1949, delirery of possession was effected in May 1949, and the parties were given separate posses