JUDGMENT

A. K. PARICHHA, J : This is an appeal by the unsuccessful plaintiffs challenging the judgment and decree passed by the learned Subordinate Judge, Talcher in Title Suit No.6 of 1983.

2. The properties described in the schedule of the plaint are ancestral properties of the parties and Krutibas Fatesingh, the common ancestor was the owner of these properties, Krutibas died leaving behind his three sons-Gouranga, Kalandi and Madhu. Defendant Nos. 1 to 4 represent the branch of Gouranga, defendant Nos. 7 and 8 represent branch of Madhu and the plaintiffs, de¬fendant Nos. 5 & 6 and Braja, (who died unmarried and issuless) represent the branch of Kalandi.

3. The following genealogy will explain the relationship between the parties inter se :

Krutibas Fatesingh

Gourang Kalandi Madhu (W=Ranga)

(W=Duti) (Deft.7)

Sarat (W=Drapaudi) Iswar @ Chandi Giridhari

(Deft. No.1) (W-Subrana) (Deft,8)

Expired in 1977

Surya Gokulananda Braja (Unmarried) Dukhi

(Deft.5) W=Mahamaya (Issueless. Expired (Defnt.6)

(Plaintiff No.1) in 1979

Benu (Deft.) Pakeli Chaturi

(Defnt.3) (Defnt.4)

4. The case of the plaintiff-appellants is that Iswar was the adopted son of Kalandi and Gokulananda, the husband of plain¬tiff No.1 and father of plaintiff No.2, Braja and defendant Nos. 5 & 6 were the children of Iswar and his wife-Subarna. Gouranga, Kalandi and Madhu had not effected any partition but were in enjoyment of specific parcel of the suit properties by mutual arrangement and on their, death the respective branches continues enjoying those properties separately. While enjoying those properties separately, members of the each branch disposed of some properties and there is no grievance of any of the parties with respect to those alienations. After the death of Braja and Gokulananda, defendant No.5, defendant No.6 and the plaintiff continued their possession over the lands which were earlier being enjoyed by Kalandi and then Iswar. When the matter stood thus, defendant Nos.5 and 6 in connivance with defendant No.8 and some henchmen created trouble in the possession of the plaintiffs over the lands, which they were in possession. As a result, the plaintiffs had to leave the place and take shelter in the house of the parents of plaintiff No.1. Thereafter, the plain¬tiffs repeatedly demanded partition of the suit properties and even served advocate notice in that regard, but no tangible result came out. So they had to file the suit for partition. The defendant Nos. 1, 7 and 8 did not file any written statement and were set ex parte. Defendant Nos. 2, 3 and 4 filed the joint written statement supporting the case of the plaintiffs. Defend¬ant Nos. 5 and 6 filed a joint written statement challenging the allegation and claim of the plaintiff, pleading inter alia that there was already a partition of the suit properties and the suit for partition is not maintainable, that they never created any trouble in the possession of the plaintiffs over any part of the suit property and as such there was no cause of action for filing the suit. The further pleaded that the family had incurred loans from Talcher Co-operative Land Development Bank as well as from private individuals for family necessity and because they repaid those loans, some lands, namely, Magha kiari and Sajar Kiari were given to them and for that reason those lands are not available for partition. It was also pleaded that the award of Rs.12,000/- granted by the Motor Vehicle claims Tribunal in the name of Subarna Dei mother-in-law of the plaintiff No.1 was appropriated by the plaintiffs, although defendant Nos. 5 and 6 had share in the same and therefore the said amount should also be brought into hotchpotch for partition and respective share of defendant Nos.5 and 6 should be given.

5. From the pleadings of the parties, learned trial Court framed as many as six issues and accepted evidence of the parties on those issues. Plaintiff No.1 examined herself as the so