JUDGMENT S. B. Sinha. J. - This first appeal is directed against a judgment and decree dated 17.11.1982 passed by Sri B. Kandir, 2nd Additional Subordinate Judge, Giridih, in Partition Suit no. 55 of 1979 whereby and whereunder the said learned court dismissed the plaintiffs' appellants' suit for partition. The aforementioned suit was filed by the plaintiff claiming inter alia 1/12th share in the properties described in schedule B of the plaint. 2. In order to appreciate the fact of the matter which is not in dispute, the genealogical table of the parties may be noticed which is set out as under:- Guna Mian Jhumar=widow Dina Bihari Juthan Manbodh Barsani Kabir Kasmali Jadu Madan Jodhi= Samat Ali Ali Mian D.1 Widow Bibi =Begum Malin D.13. Bibi. Ishaque D.2. Maniruddin Jayarat Sahabuddin Jalil Chhotka Mian Tawarakh D.15 Hussain Plff. no.2 D.11 D.14. = widow ( ) Plff. 1 Bibi Khatija D.16. Jhumar =daughter Bibi Lachho Ainul Nizamuddin D.22 D.23 Nabi Mian Sahdali Rajan Ahmad Rehmagul Bibi Saliman D.10. Maniruddin Gafoor Barasat D.4 D.5 Ainul Mian Sikandar Yasin Imammuddin D.3 D.6 D.8 D.7 3. According to the plaintiff, the properties, in suit previously belonged to and recorded in the names of Jhumar Mian and Dina Mian having two sheres; and Madan and Jodhi son of Bihari having one share. Thus, three branches of Jhumar, Dina and Bihari had one share each in the suit properties. 4. Admited1y, the parties are in separate possession of the aforementioned lands. According to the plaintiff, such acts of possession are being exercised by the parties by way of convenience; whereas according to the contesting defendants/respondents, the recorded tenants partitioned the lands by metes and bounds immediately after completion of the cadestral survey settlement operations. It appears from the record of rights that Jhumar Mian had been in possession of 7.11 acres of land; Dina Mina had been in possession of 1.16 acres and Madan and Lodhi Mian together were possessing a land measuring 3.08 acres. 5. According to the plaintiffs, the said lands were never partitioned and Jhumar Mian died in the state of jointness 7-8 years after the survey operations leaving behind his widow Mosst. Barsani and a daughter named Bibi Lachhu. Allegedly, after the death of Jhumar Mian, his widow began to live with the plaintiffs and others where she died and her last rites were performed by the plaintiff. Barsani and a daughter named Bibi Lachhu. Allegedly, after the death of Jhumar Mian, his widow began to live with the plaintiffs and others where she died and her last rites were performed by the plaintiff. Bibi Lachhu was married with Khairat Ali of village Kasmar. Lachhu left behind five sons named Nabi Mian, Sahdali, Rajan, Ahmad, Rahmagul and one daughter Bibi Saliman. 6. Mosst. Lachhu or her sons, according to the plaintiffs, did not take any interest in the cultivation of the suit land, but, in the year 1952, they made an attempt to get their alleged share recorded in the name of Jhumar Mian and with this in view, filed Partition Suit which was registered as Partition Suit no. 57 of 1952. In the said suit, only the properties recorded in khata no. 300 of village Seram were the subject matter thereof and not the suit properties. The said suit was dismissed and the plaintiffs of the said suit preferred an appeal before the District Judge, Hazaribagh, and the said appeal was allowed. 7. Allegedly, at that point of time, some of the other co-sharers of khata no. 82 agreed to partition the lands out side the court and the defendant nos. 3 to 10 (heirs of late Bibi Lachhu) get the said lands separated but as they found difficulties in managing and cultivating the same for themselves, they gave their shares of land to the plaintiff in Adhbatai and since then the plaintiffs are cultivating the said lands as Adh-bataidar of the defendants. With regard to the share of Dina Mian, it was contended that he died leaving behind three sons-Kabir, Kasmali and Jado Mian. Kabir Mian died leaving behind a daughter who relinquished her interest in the land of khata no. 82 and other lands of village Saram in favour of Kasmali Mian. 8. Jado Mian died leaving behind a daughter Bibi Maheran who had also relinquished her interest in favour of said Kasmali Mian and, thus, Kasmali Mian alone was having 1/3rd interest in the suit properties. Kasmali Mian has been added as defendant no. 1; whereas his son Ishaque has been added as defendant no. 2. 9. 8. Jado Mian died leaving behind a daughter Bibi Maheran who had also relinquished her interest in favour of said Kasmali Mian and, thus, Kasmali Mian alone was having 1/3rd interest in the suit properties. Kasmali Mian has been added as defendant no. 1; whereas his son Ishaque has been added as defendant no. 2. 9. Plaintiffs' further case is that Jodhi Mian died in the year 1974 leaving behind five daughters who have not been impleaded as parties in the suit as, according to the plaintiffs, they had relinquished their interest in favour of sons of Madan Mian. Madan Mian died in the year 1973 leaving behind four sons namely Maniruddin (D. 15), Jeyarat Hussain (Plff. 1), Sahabuddin (Plff. no. 2) Jalil (D. 11). The plaintiffs have, thus, claimed 1/12th interest in the suit properties. 10. The plaintiffs further contended that they came to learn on or about 9.7.1979 that said Kasmali Mian had executed two sham deeds of sale : one in the name of his son Ishaque Mian (deft. no.2) and other in favour of Mosst. Begam wife of Ali Mian, mother of defendant nos. 22 and 23, measuring 5.131/a acres and 3.401 acres respectively. According to the plaintiffs, the vendees never came in possession nor thereby they derived any right, title and interest or possession in respect of the lands which were covered by the said deeds of sale. The plaintiffs have further contended that defendant no.15 Maniruddin Mian had set up a person named Mahboob Mian in place of Immamuddin Mian and got a sale deed dated 30.4.1974 executed and registered in favour of his daughter Julekha Khatoon (defendaent no. 12) for an area measuring 0.43 acres. Allegedly, the plaintiffs had further come to learn that said Ishaque (defendant no. 2) had also transferred O. 22 decimals of land to defendant no. 10 by reason of a registered deed of sale dated 24.6.1978. The plaintiffs contended that they demanded partition but as the defendants did not show any inclination to partition the suit land, they had to file the said suit. 11. Defendant nos. 14 and 15 appeared in the said suit and filed a written statement. Defendant nos. 18 to 23 also filed a written statement and contested the suit. Similarly defendant nos. 12 and 15 had also filed another set of written statement and contested the suit. 11. Defendant nos. 14 and 15 appeared in the said suit and filed a written statement. Defendant nos. 18 to 23 also filed a written statement and contested the suit. Similarly defendant nos. 12 and 15 had also filed another set of written statement and contested the suit. The case of defendants appears to be that Jhumar Mian died in a state of separation from his surviving brothers and nephews. It was alleged that after the death of Jhumar Mian, his successor-in-interest have all along been in possession of the suit land. According to defendants, in the aforementioned Partition Suit no. 57 of 1952, the suit properties were not included as partition had already been effected in relation thereto. The said defendants further denied that defendant nos. 3 to 10 had given the lands which fell in their share in Adh-batai of the plaintiffs. 12. It was further contended that five daughters of Jodhi Mian are necessary parties to the suit and in their absence, the suit cannot proceed. It was further contended that upon the death of Jodhi Mian, his interest was inherited by his widow and five daughters who came in possession of the suit land and Madan Mian or his sons had never any concern with the same. As indicated hereinbefore, the main defence of the said defendant is that within a few years of the survey settlement operation, there had been partition of the lands appertaining to khata no 82 of village Khudgarha amongst the recorded tenants. 13. It was further stated that all the transactions referred to in the plaint are genuine and the purchasers got their names mutated and are in possession of the properties respectively purchased by them. 14. Defendant nos. 12 to 15 supported the case of the plaintiffs. However, it may be stated that Julekha Khatoon is in possession of the lands purchased by her from Imamuddin Mian and Sikander Mian. Defendant nos. 18 to 23 who are purchasers in respect of some of the lands appertaining to khata no. 82 supported the case of defendant nos. 14 to 13. 15. On the basis of the aforementioned pleadings of the parties, the learned court below framed the following issues:- 1. Is the suit as framed maintainable? 2. Is the suit barred by limitation? 3. Is the suit bad for non-joinder of necessary parties? 4. 82 supported the case of defendant nos. 14 to 13. 15. On the basis of the aforementioned pleadings of the parties, the learned court below framed the following issues:- 1. Is the suit as framed maintainable? 2. Is the suit barred by limitation? 3. Is the suit bad for non-joinder of necessary parties? 4. Is there valid cause of action for the suit? 5. Is there unity of title and community of interest between the parties to the suit in respect of the suit land fully described in Schedule 8 of the plaint? 6. Are the plaintiffs entitled to the decree for any of the reliefs claimed in the suit? 16. Learned court below took up issue nos. 3 and 1 together and held that the suit is bad for non-joinder of parties. With regard to issue no. 5, learned court below held that there had been a partition by metes and bounds and as such the suit is not maintainable. 17. Mr. N. K. Prasad, learned counsel appearing on behalf of the appellant, firstly, submitted that even assuming that the plaintiffs could not prove the factum of relinquishment of the share of Jodhi Mian by his daughters, the suit for partition will not fail. Learned counsel in this connection has strongly relied upon a decision of the Rajasthan High in Mohammad Subhan vs. Dr. Mishabuddin Ahmad and others reported in AIR 1971 Rajasthan 274. Learned counsel further contended that for the purpose of proving relinquishment, a deed of relinquishment is not necessary and in support of this contention, learned counsel has relied upon Mt. Hashihan vs. Jalaluddin and others reported in AIR 1982 Patna 226. 18. With regard to the finding of the court below relating to a previous partition of the suit land, learned counsel contended that except the defendant, no other witnesses stated about the partition and this witness also stated that he believed that there had been a partition of the joint family properties because the parties are in separate possession. 19. Learned counsel further submitted that the onus to prove previous partition was upon the defendants. Learned counsel has further relied upon paragraphs 41 and 42 of the Mulla's Principles of Hindu Law. 19. Learned counsel further submitted that the onus to prove previous partition was upon the defendants. Learned counsel has further relied upon paragraphs 41 and 42 of the Mulla's Principles of Hindu Law. It was further submitted that as the Muslims have a particular and definite share in the joint family properties, they are entitled to transfer any land out of their share and no inference of previous partition can be drawn on the basis of such transactions alone. 20. Mr. Bhaiya Yogendra Kishore, learned counsel appearing on behalf of the respondents, on the other hand, submitted that as relinquishment leads to extinguishment of somebody's title, such a relinquishment can be done only by reason of an instrument which is compulsorily registerable in terms of section 17 of the Registration Act. 21. Learned counsel, therefore, submitted that as the plaintiffs could not prove the purported relinquishment of the plaintiffs by the five daughters of Jodhi Mian, the suit has rightly been dismissed by the learned court below. 22. Learned counsel next contended that as the survey settlement operations in the district of Hazaribagh had been completed in the year 1911, it is not possible to furnish direct evidence of partition. It was, therefore, submitted that an inference of previous partition has to be drawn from the materials brought on records as also the circumstances attending thereto. 23. Learned counsel submitted that an inference of previous partition can be drawn only on the basis of various circumstances and in support of this contention. The learned counsel relied upon a decision of this court in Radhamoni Bhuiyanin and others vs. Dibakar Bhuiya and others reported in AIR 1991 Patna 95. 24. Before proceeding to discuss the rival contentions of the parties in respect of the aforementioned questions, it may be mentioned that respondent no. 19 Mosst. Sudani wife of Salamat Mian died on 22.1.1991, but no substitution application was filed on behalf of the appellant within the prescribed period. 25. From the order sheet dated 8.7.91 it appears that learned counsel appearing for the respondents stated that respondent no. 19 had died. Mr. P. K. Prasad learned counsel appearing on behalf of the appellants stated that he would seek instruction in the matter. The case was therefore, directed to go out of the list and placed after two weeks in order to enable the appellant to file an application for substitution. 19 had died. Mr. P. K. Prasad learned counsel appearing on behalf of the appellants stated that he would seek instruction in the matter. The case was therefore, directed to go out of the list and placed after two weeks in order to enable the appellant to file an application for substitution. It appears that no application for substitution has been filed, but it was contended that the appeal has not abated as respondent nos. 20 and 21 who are some of the heirs of the aforementioned respondent no. 19 are already on record. 26. The main questions, therefore, which arise for consideration in this appeal are as follows:- (A) Whether the suit was bad for non-joinder of the daughters of Jodhi Mian? (B) Whether the plaintiffs have been able to prove unity of title and unity of possession in respect of the suit properties? 27. Ref. : Question no. A: There cannot by any doubt, as has been contended by Mr. N. K. Prasad, that in a suit for partition filed by one of the co-sharers of a Muslim family may not be held to be bad for non-joinder of all co-sharers as in the case of Hindu Joint Mitakshra family, inasmuch Shares of each and every co-sharer of a Muslim family is specific and definite. 28. In terms of Order I Rule 9 of the Code of Civil Procedure, a suit may not be dismissed for non-joinder of parties and the inter se rights of the person who are parties to the suit may be determined in the suit itself. However, proviso to Order I Rule 9 provides that the said provision will have no application where necessary parties to 3 suit have not been impleaded as a party. It is, therefore, to be open as to whether the five daughters of Jodhi Mian were necessary parties to the suit or not. 29. Mr. Prasad has not questioned the findings of the learned court below to the effect that the plaintiff has failed to prove the purported relinquishment made in favour of the sons of Madan Mian (which includes the plaintiffs) by the five daughters of the aforementioned Jodhi Mian. In the suit, the plaintiff had claimed 1/12th share. 29. Mr. Prasad has not questioned the findings of the learned court below to the effect that the plaintiff has failed to prove the purported relinquishment made in favour of the sons of Madan Mian (which includes the plaintiffs) by the five daughters of the aforementioned Jodhi Mian. In the suit, the plaintiff had claimed 1/12th share. In the event the plaintiffs fail to prove the purported relinquishment made by the daughters of Jodhi Mian, the same will have an adverse effect on the share claimed by the plaintiff inasmuch as in such an event the share of each of the plaintiffs would be 1/24th and not 1/12th. 30. Further the learned court below has found as of fact that the daughters of aforementioned Jodhi Mian are in possession of the properties which fell in their share. This finding has been questioned before me. 31. The law, therefore, in my view appears to be 8ettled that a suit for partition filed by one co sharer shall not fail for non-impleading one or the other co-sharer so long property involved in the suit will have no bearing so far as the share of such persons who have not been so impleaded are concerned and in the event such persons admittedly are not in possession in respect of the properties in the suit. Only in such event, a suit for partition filed by a co-sharer of a Muslim family shall not fail, but not otherwise. 32. In this case, the plaintiff had set up a definite case with regard to the factum of relinquishment of their shares by five daughters of Jodhi Mian. Evidently, he has failed to prove the said plea. Further, as noticed hereinbefore, the aforementioned five daughters of Jodhi Mian had been found to be in possession of a portion of the properties in suit. In such an event, in my opinion, the learned court below must be held to have rightly held that the suit is bad for non-joinder of parties. The decision of Rajasthan High Court in Mohammad Subhan vs. Dr. Mishabuddin Ahmad and others (supra), instead of helping the appellants goes against their contention. In such an event, in my opinion, the learned court below must be held to have rightly held that the suit is bad for non-joinder of parties. The decision of Rajasthan High Court in Mohammad Subhan vs. Dr. Mishabuddin Ahmad and others (supra), instead of helping the appellants goes against their contention. In the said decision, the Rajashan High Court held:- "Order 1 R. 10 C.P.C. makes out a distinction between persons who ought to have been joined as plaintiffs or defendants and those without whose presence the question in the suit cannot be completely decided. In the former case, they are necessary parties to the suit and in the latter, they are only proper parties. Although in a suit for partition under the Mitakshara law, all the persons interested in the property are necessary parties, because in such a case, it cannot be predicted what share an individual member has in the undivided co-percenary, but this is not the case under the Mohammedan law where the heirs are only tenants in common and whose shares are definite and specified in law. But in the case of Muslims where an heir claims more than what he is entitled to under the Mohammedan law to the exclusion of the share of other persons who are so entitled under that law, it is necessary that the persons whose exclusion is sought must be joined in that suit because any decision given in their absence would not be binding upon them and would be ineffectual. In the suit as framed, the plaintiff did not claim only that much share to which he would have been entitled under the Mohammedan Law but claimed more than his share on the ground that the female heirs of other sons of Ibrahim were under the custom prevalent amongst the Lohars in Ajmer Merwara and Rajputana excluded from inheritance. The determination of the plaintiff's share necessarily involved the decision of this question whether under the alleged custom female heirs got any share in the property of the deceased or not and for the decision of that question, presence of those heirs was necessary." 33. The determination of the plaintiff's share necessarily involved the decision of this question whether under the alleged custom female heirs got any share in the property of the deceased or not and for the decision of that question, presence of those heirs was necessary." 33. From the aforementioned decision, it appears that if the determination of the plaintiff's share necessarily involved the decision of the question as to whether under the alleged custom female heirs got any share in the property of the deceased or not, presence of those heirs was necessary. Similar was the position in this case also. However, in that case, the plaintiffs faced up with this situation, confined his claim only to 1/7th share and in this view of the matter, the Rajasthan High Court after taking into consideration various decisions of the court held that the suit for partition will not fail for non-joinder of parties. 34. In this connection, it may be mentioned that this aspect of the matter has been considered by a Full Bench of this court in Wajihunissa and others v. Bankebehari Singh and others reported in AIR 1930 Patna 177. The aforementioned decision of the Patna High Court has been relied upon in Md. Subhan's case (supra). In the Full Bench before the Patna High Court, persons who were not impleaded as parties were said to be the landlords. The title of the said landlord was questioned by the plaintiff. Admittedly, the said persons were not in possession of the properties in suit. In such a situation, the Full Bench held that the suit shall not fail for non-impleading third party who were not co-sharers and admittedly are not in possession of the properties in suit. It was further held that when the plaintiff disputes the title of the said third party, such a question can be decided in a properly constituted suit for declaration of title at their instance inasmuch as a suit for partition filed by the plaintiffs could not be converted into a suit for declaration of title. 35. It was further held that when the plaintiff disputes the title of the said third party, such a question can be decided in a properly constituted suit for declaration of title at their instance inasmuch as a suit for partition filed by the plaintiffs could not be converted into a suit for declaration of title. 35. In another Division Bench decision of this Court in Churamao Mahto and others v. Bhatu Mahto and others, (AIR 1935 Patna 241) this Court clearly held that if a party to the suit for partition of the properties belonging to a Muslim family dies leaving behind several heirs, such a suit shall abate unless all his heirs and legal representatives are brought on record. 36. The aforementioned decision, therefore, is also an authority for the proposition that wherever the share in the joint properties claimed by the plaintiff shall affect the right of any other party, non-impleading such other party shall be fatal to the continuity of the suit. 37. This aspect of the matter may further be considered from another angle. The doctrine of representation has no application in Muslim law. Thus even a co-sharer cannot represent the interest of another in a suit for partition. 38. This is also evident from paragraphs 41 and 42 of the Principles of Mohammedan Law by Mulla upon which reliance has been placed by Mr. N. K. Prasad himself. Further, in this case, the purported relinquishment will amount to extinction of title of the daughters of the aforementioned Jodhi Mian. Such extinction of one's title requires registration in terms of section 17 of the Indian Registration Act. 39. Thus in absence of any registered instrument, the plaintiff cannot be said to have acquired right, title and interest in respect of the suit properties. 40. It is well settled that where a property can be transferred by execution of a registered instrument, the title passes only on registration of such document. 41. It is, therefore, not correct to say that in absence of any registered instrument, the plaintiffs derived any title in respect of the shares of the daughters of Jodhi Mian by reason of the purported relinquishment. 42. If title in a property has not been validly created, the same cannot be created either by admission, by estoppel or by acquiescence. It is, therefore, not correct to say that in absence of any registered instrument, the plaintiffs derived any title in respect of the shares of the daughters of Jodhi Mian by reason of the purported relinquishment. 42. If title in a property has not been validly created, the same cannot be created either by admission, by estoppel or by acquiescence. A title to a property is created validly only when it conforms to the requirement of the statute. 43. Thus unless and until the conditions precedent for passing of a title from one to the other are satisfied, one cannot derive title by reason of inaction on the part of another. 44. A title cannot pass by mere admission. See Ambika Prasad. v. Ram Eqbal reported in AIR 1966 SC 605 at 612. Thus, if title cannot be derived by admission which is one of the foundations for a plea of estoppel, mere Inaction of one cannot create a title for another unless the same is obtained by prescription. No such case has been made out by the plaintiff in the instant case. 45. In Mt. Hashihan vs. Jalaluddin and others (supra) Hon'ble B. P. Jha, J. as he then was, held that the plaintiff proved his title in view of the inaction on the part of the defendant. The settled principles of law, as stated hereinbefore, had not been brought to His Lordship's notice nor the provision of section 17 of the Indian Registration Act was referred to therein. It is now well known that a decision rendered without considering a decision of the Supreme Court or of the co• ordinate bench of the same court or without considering the relevant provisions of a Statute must be held to have been rendered per incurium. This aspect of the matter has been recently dealt with by the Supreme Court in Municipal Corporation of Delhi vs. Gurnam Kaur reported in (1989) 1 Supreme Court Cases 101. 46. Taking thus all facts and circumstances into consideration, I am of the view that the learned court below has rightly held that the plaintiff's suit must fail for non-joinder of the daughters of Jodhi Mian. 47. Re. Question No. B. : It is an admitted position in law that unlike Hindu Joint family, no presumption arises in respect of a joint Mohammedan family that the same continued to be joint. 47. Re. Question No. B. : It is an admitted position in law that unlike Hindu Joint family, no presumption arises in respect of a joint Mohammedan family that the same continued to be joint. Even in relation to a Hindu joint family the presumption is stronger in cases of full brothers and such presumption gets weaker and weaker by passage of time. 48. Mr. N. K. Prasad relying on or on the basis of section 110 of the Indian Evidence Act contended that as possession follows title, the state of affairs as existing at the time of the entry in the survey settlement record of rights must be held to be continuing and, thus, onus to prove previous partition was upon the defendants. The submission of Mr. N. K. Prasad is only stated to be rejected. It is admitted by the plaintiffs that the parties are in separate possession of the land. It is also admitted that even at the time of the preparation of survey settlement record of rights, parties were found to be in separate possession of the lands. 49. Thus, if the provisions of section 110 of the Indian Evidence Act is made to apply, the same shall run counter to the contention of Mr. Prasad. The plaintiff has filed a suit for partition. One of the essential ingredients for grant of a decree for partition is proof of unity of title and unity of possession. In the instant case, different parcels of land were recorded in the names of different persons. Admittedly, so far as the suit land is concerned, the same was recorded in the name of Jhumar and Dina having two shares and Madan and Jodhi having one share. The lands appertaining to khata no. 300 which was the subject matter of Title Suit no. 52/57 were recorded in the name of Jhumar; Dina and Manbodh two sons of Guna having three shares; Jaga son of Juthan having one share and; Jodhi son of Bihari having one share. 50. A record of right is not a document of title. No materials have been placed on records to show as to how some of the sons of the common ancestor namely, Guna Mian acquired different sets of properties. In such a situation, it has to a held that the properties appertaining to khata no. 50. A record of right is not a document of title. No materials have been placed on records to show as to how some of the sons of the common ancestor namely, Guna Mian acquired different sets of properties. In such a situation, it has to a held that the properties appertaining to khata no. 82, namely, the suit land, as also the properties appertaining to khata no. 320 which was the subject matter of Title Suit no. 52/57 did not form part of the joint family property. 51. As has been conceded by Mr. Prasad, under the Mohammedan law, the doctrine of representation is unknown. All the co-sharers, therefore, had a definite share and as noticed hereinbefore, admittedly, so far as the suit lands are concerned, the parties have been in possession of different parcels thereof. 52. It is admitted that the parties are in separate possession of the lands in question. It is also admitted that even the rent is not being paid jointly in respect of the said lands. It has further been admitted that by reason of several deeds of sale namely the deed dated 18.10.69 (Ext. A), 3.4.1986 (Ext.A/1), 3.3.1978 (Ext. A/2), 11.10.1978 (Ext. A/3), different co-sharers had transferred specific lands and not their undivided share. It is also admitted that the daughter of the plaintiff Julekha Khatoon has also purchased some lands from Enamuddin Mian. 53. It is, therefore, evident that although no direct evidence of partition was available on records, the defendants have been able to bring on record several facts wherefrom an inference of partition can be drawn which may be enumerated as hereinafter:- (1) The suit lands were not included in the earlier suit for partition, namely, Title Suit no. 52 of 1957, although the plaintiff was a party thereto nor did he make any objection in relation thereto. (2) Despite the fact that the plaintiff in the plaint questioned the deeds of sale, namely, Ext. A series, P. W. B. in his evidence admitted that all the sale deeds are genuine and the purchasers are in possession thereof. (3) It is further admitted that rent receipts are being granted in their names in respect of the lands purchased and they are in exclusive possession thereof. A series, P. W. B. in his evidence admitted that all the sale deeds are genuine and the purchasers are in possession thereof. (3) It is further admitted that rent receipts are being granted in their names in respect of the lands purchased and they are in exclusive possession thereof. (4) The plaintiff in paragraph 30 of his deposition has further admitted that the deed of sale executed in favour of Julekha is valid although, as noticed hereinbefore, in the plaint be described the said deed of sale as forged. 54. D.W. 1 who bad been siding with the plaintiff bas also admitted that there had been a partition and the parties are in possession of the lands according to their shares. P.W. 5 Badri Prasad in para 12 of his deposition has also admitted separate cultivation. P.W. 8 in paragraph 19 of his deposition admitted the transaction made by Kasmalli. In paragraph 26, he admitted the transfer in favour of Julekha despite statements made to the contrary in the plaint. In paragraph 28 of his deposition, he admitted that the heirs and representative of the recorded tenants are in possession of the lands in accordance with their respective shares. 55. Apart from the aforementioned deeds, the defendants have also brought on record various rent receipts which are Exts. 8 to 8/2 which also chow that rent is being paid separately. 56. D.W. 1 has further stated that Rahmadul Ansari had also purchased land under khata no. 82 from Ishaque Mian. He also stated that the plaintiffs have also purchased land under khata no. 82. The said sale deed been marked as noticed hereinbefore, has Ext. 1. 57. Coming to the oral evidence P.W. 4. Md. Amin appears to an incompetent witness inasmuch as he stated that he did not know anything about the suit lands nor could he say as to in whose name the same have been recorded. P.W. 5 Badri Prasad, as noticed hereinbefore, admitted that the plaintiffs and the defendants are cultivating the suit lands separately. 58. P.W. 8 Jairath Hussain although stated in-chief that there had been no partition of the suit land by metes and bounds, but, as noticed hereinbefore, he made several admissions which have been recorded by the learned court below in paragraph 27 of his judgment which have also been noticed by me earlier. 59. 58. P.W. 8 Jairath Hussain although stated in-chief that there had been no partition of the suit land by metes and bounds, but, as noticed hereinbefore, he made several admissions which have been recorded by the learned court below in paragraph 27 of his judgment which have also been noticed by me earlier. 59. In this connection, it may be mentioned that the survey settlement operation took place in the year 1911-12 in the district of Hazaribagh. According to the defendants, the parties partitioned their lands by metes and bounds within 3-4 years of the final publication of the record of rights. It was, therefore impossible for the defendant to prove partition by direct evidence. 60. The plaintiffs could not prove his case of unity of title and unity of possession. On the other hand, if the cumulative effect of the circumstances, as mentioned hereinbefore, namely, separate residence, separate possession, separate payment of rent, separate transaction and cultivation of lands separately for a long time by the same branch may lead to an inference of previous partition. 61. In Radhamoni Bhuiyanin v. Dibakar Bhuiya reported in AIR 1991 Patna 95, this Court observed:- "20. True it is as suggested by Mr. N. K. Prasad that there has been no direct evidence of partition and the two defendants who examined themselves as D. Ws. 3 and 4, could not have been the witness of the actual partition. However in the instant case, not only the parties are in separate possession for a long time i.e. for a period of seventy years but they are also in separate mess and having separate residences for more than seventy years. 21. The learned trial court itself had come to the conclusion that there has been a partition of the properties inter se amongst the plaintiffs. 22. It is now well settled that although there is a presumption of jointness in a Hindu family but that presumption is stronger where the parties are full brothers but such presumption gets weaker and weaker as time passes and parties in third or fourth generation are found to be in separate possession of the lands. 22. It is now well settled that although there is a presumption of jointness in a Hindu family but that presumption is stronger where the parties are full brothers but such presumption gets weaker and weaker as time passes and parties in third or fourth generation are found to be in separate possession of the lands. From a perusal of the Khatian, Exhibits C and C/1 it appears that no plot, whatsoever, has been shown to be joint." In that case, therefore, on the basis of the said circumstances, it was held that there had been a previous partition of a joint Hindu family. In view of the presence of the same factors, inference of previous partition of a Muslim family can also be drawn. 62. So far as non-substitution of heirs of Mt. Sudani is concerned, it has been contended by Mr. Prasad that two of her sons being respondents 20 and 21 are on record. However, no application appears to have been filed for substitution of the heirs of Mt. Sudani nor any statement has been made that besides respondents 20 and 21, Mt. Sudani had not left behind any other heirs. In absence of such a statement, in view of the decision of this Court in Churamao Mahto and others v. Bhatu Mahto and others (AIR 1935 Patna 241) (supra), it has to be held that suit has abated as against Mt. Sudani if she had any other legal representative. 63. Taking thus all facts and circumstance into consideration I am of the view that there is no merit in this appeal which is accordingly dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.