Hon’ble Sudhir Agarwal, J.—Two of the several defendants, who did not contest the suit by filing written statement but felt aggrieved by the judgment of the Lower Appellate Court (hereinafter referred to as “LAC”), have chosen to file this appeal, under Section 100 C.P.C.

2. The suit was instituted by Sri Jairaj Krishna, Anil Kumar and Suneel Kumar, sons of (late) Bindeshwari Prasad; and, Smt. Rammani Devi, widow of Late Bindeshwari Prasad, impleading the widow, sons and daughters of Late Narain Das Agarwal as defendant Nos. 1 to 12 (first set) and widow, sons and daughters of Late Ram Narain as defendant Nos. 13 to 20 (second set).

3. All the parties belong to common ancestors having initially, a joint business. It was pleaded that the parties resided jointly and carried on joint business till 1943. Thereupon there was a partition in family property, but cloth business continued to run jointly. The plaintiffs were assigned half of share and defendants 1 to 12 and 13 to 20 were assigned 1/4 share each.

4. Subsequently in 1969, due to difficulty faced in running joint business, parties underwent another settlement (oral), wherein the entire joint property and business was divided half between the plaintiffs and defendants each. The oral settlement was given effect to, and, thereafter, parties managed their affairs accordingly. Shop No. 24, Chowk, Allahabad came to the share of plaintiffs and continued to be run by them, being in their possession. Defendants 13 to 20, at that time, were residing on upper floor of House No. 86, Jawahar Square, and it was decided that they shall continue to stay, but as soon as possible, vacate the same, and, thereafter, a partition wall shall be raised.

5. It was pleaded that pursuant to above arrangement, since 1969, defendants 13 to 20 became licensee and continued to reside in the House in the capacity of licensee. However, they were not inclined to vacate the aforesaid premises, hence, a notice was given on 29.10.1977. The suit was filed with the prayer that a partition wall be allowed to be raised in House No. 86, Jawahar Square, and, the possession of part of property, fell in the share of plaintiffs, be given to them, and, in case the Court finds that there is no such mutual partition/family settlement, partition between the family be made by the Court, giving plaintiffs’ half share of property in dispute, as per the settlement of 1943 and 1969 and allow possession of the property accordingly.

6. Before the Trial Court (hereinafter referred to as “T.C.”), defendant No. 14, Sri Shambhoo Nath Agarwal (now deceased and substituted by his heirs and legal representatives) filed written statement, denying assertions of the plaint. He stated that defendant Nos. 13 and 15 to 20 are residing on the upper part of House No. 86, Jawahar Square, Allahabad and no notice has been given to them. He admits that plaintiffs are carrying on business at 86, Jawahar Square but they have occupied House No. 24, Chowk, unauthorisedly and illegally. There was no partition of House No. 86, Jawahar Square and 24, Chowk, Allahabad and both these properties are still joint family properties. He, however, admitted that plaintiffs have half share in the aforesaid property and 1/4th share is that of defendant Nos. 14 to 20 as a result whereof, defendant No. 14 has 1/32 share and the same should be separated.

7. Another written statement was filed by defendant No. 2 (Sri Krishna Chandra, now deceased and substituted by his heirs and legal representatives). He admitted some of the assertions of plaint while denying others. He said that the cloth business jointly continued till 1943 at 86, Jawahar Square and 24, Chowk, Allahabad. Thereafter, the business continued in partnership but the defendant No. 2 did not continue as partner. He admits that defendant Nos. 13 and 15 to 19 are residing on the upper portion of House No. 86, Jawahar Square and carrying on business thereat, but the possession at 24, Chowk, Allahabad