Judgment P.K.DEB, J. 1. :- This appeal has been preferred by the abovenamed defendant No. 2-appellant against the judgment and decree dated 8-12-1976 and 18-12-1976 respectively in Partition Suit No. 5 of 1974/6 of 1976 by which the suit of the plaintiffs-respondents Nos. 1 to 6 has been decreed for partition of six annas share in the suit khata including the share of defendant-respondent No. 7. 2 The suit land consisted of an area of 34.17 decimals appertaining to several plots of village Taranari, PS-Nawadih, District-Giridih, details of which have been mentioned in Schedule B of the plaint. The genealogy with regard to the tracing of title by the parties have not been denied and said genealogy has been given by plaintiffs in the Schedule A of the plaint and the same had been reiterated in the impugned judgment under Para-60. One Mohan Kurmi was the original raiyat. He died leaving behind four sons namely Bhagirath, Atma Ram, Mana Ram and Kishun Ram. Bhagirath Ram, according to the plaintiffs, died in the state of separation from his other three brothers shortly before survey leaving behind his only son Jitan and Jitan being minor he was used to be taken care of by all his uncles in general and Atma Ram in particular. The defendant No. 2-appellant happens to be the sole heir of Jitan. It is the further case of the plaintiffs that after survey settlement in 1916-17 the names of four brothers had been incorporated in the record of rights and just after the survey settlement Atma Ram died without any issue leaving behind his two brothers as his close heirs to succeed his interest in the suit khata No. 48. As per Rule of Inheritance, all the sons of Mohan Kurmi had four Annas share and as such on the demise of Atma Ram, share of Mana and Kishun increased from four annas to the extent of six annas share. All the four Branches arisen out of Mohan Kurmi were separated in mess and property for convenience from before the Survey but there has never been any division of land by metes and bounds. Each Branch is in the cultivating possession of lands according to its convenience and are contributing their quota of rents. The plaintiffs represent the branch of Mana Ram along with defendant No. 1 and defendants Nos. Each Branch is in the cultivating possession of lands according to its convenience and are contributing their quota of rents. The plaintiffs represent the branch of Mana Ram along with defendant No. 1 and defendants Nos. 4, 9 and 18 represent the share of Kishun Ram as his direct descendants, while defendant No. 2 is the sole heir of Bhagirath. According to the plaintiffs, the defendants Nos. 4, 9 and 18 also have the share to the extent of six annas. Defendant No. 3, Tukni Devi is the daughter of Somar and she inherited the share of Somar when Jailal died issueless. She sold her share to the defendant No. 18. It is the further case of the plaintiffs that before this partition suit, previously Partition Suit No. 116 of 1969 was filed by the Branch of Kishun Ram in the Court of Sub Judge, Hazaribagh which after the creation of new Giridih district had been transferred to the Court of Sub Judge, Giridih. In that partition suit, the defendants Nos. 1 and 2 filed two separate written statements contending, inter alia, that there was separation and dissolution of joint family property prior to the survey and while such separation was being made, Jitan and Atma remained joint, but Kishun and Mana had separated themselves and there had been complete partition of the lands by metes and bounds and those recorded under khata No. 48 as per Survey Kabjawari entries. According to the plantiffs, the pleas taken by the defendants Nos. 1 and 2 in the earlier partition suit was false, frivolous and got up. There had never been any partition by metes and bounds. The Partition Suit No. 116 of 1969 could not be adjudicated as the same was dismissed for default. After the dismissal of that suit, the plaintiffs of the present suit again demanded partition of the property but the defendants Nos. 1 and 2 declined the partition of the lands in the suit khata and hence the presence suit.It is also the case of the plaintiffs that Khata No. 91 has long been partitioned by metes and bounds between Mana and Kishun Ram and his heirs are in possession half and half in that khata land. The defendant No. 1 is the Karta of the joint Hindu undivided family constitutes his sons and grandsons. The defendant No. 1 is the Karta of the joint Hindu undivided family constitutes his sons and grandsons. Similarly, Jagarnath, his sons and grandsons formed a joint Hindu undivided family of which Jagarnath is the Karta and he represents the branch of Bhagirath. Defendants Nos. 10 to 28 are the purchasers of certain interest in the lands in suit and hence they have been made parties in the suit. 3. The defendants Nos. 2, 3 to 18 and the minor defendants have contested the claim of the plaintiffs. The rest of the defendants have not appeared in the suit in spite of service of summons and as such order was passed for running the suit ex parte against the other defendants. 4. The main contestant in the suit is the defendant No. 2 representing the share of Bhagirath. In his written statement he has questioned seriously both on points of law and facts the contentions made in the plaint. According to him, as per his written statement, the suit is not maintainable in its present form, the suit is bad for non-joinder of necessary parties. Hemlal Mahto sons and grandsons of defendant No. 2 and sons of defendant No. 1 are necessary parties to the suit. He further contended that the suit is barred by limitation, adverse possession, waiver, estoppel and acquiescence and that the suit is also barred by principles of res judicata because of the previous Partition Suit No. 116 of 1969. The plaintiffs have not shown their entire lands of the descendants of Mohan Kurmi as suit lands and as such the present suit for non-inclusion of khata No. 91 is bad under the provisions of Order 2, Rule 2 of the Code of Civil Procedure.According to this defendant, the suit for partition simpliciter is not maintainable until and unless the plaintiffs come up for their declaration of right, title and interest as most of the lands in the suit khata as per survey is in the kabja of Jitan Mahto and Atma Ram Mahto. On factual aspect, the contention of this defendant is that out of four sons of Mohan Kurmi, Bhagirath separated from Mana and Kishun but he remained joint with Atma Ram while there was a partition by metes and bounds amongst the brothers before the survey. On factual aspect, the contention of this defendant is that out of four sons of Mohan Kurmi, Bhagirath separated from Mana and Kishun but he remained joint with Atma Ram while there was a partition by metes and bounds amongst the brothers before the survey. It was prior to survey Bhagirath died leaving his only son Jitan in the state of jointness with Atma Ram but was absolutely separated from Mana and Kishun Ram. During the lifetime of Bhagirath, their lands of khata Nos. 48 and 91 were partitioned by metes and bounds under three separate takhtas in which one of the takhtas stood jointly for Jitan and Atma Ram while the other two in the name of Mana and Kishun independently of each others and accordingly the record of rights were prepared and Kabjawari entries were made with specific and definite shares. The lands of khata No. 91 were given to Mana Ram and Kishun Ram in equal shares. It was also created between the brothers that Mana and Kishun would cultivate the lands in khata No. 91 in equal shares and would also maintain Most. Rasli who happened to be the daughter of Mohan Kurmi and sister of the four brothers. After the death of Most. Rasli which took place just after the survey, the lands of khata No. 91 of village Taranari came to be possessed by Mana and Kishun Ram in equal shares and after their death their sons and grand sons remained in possession. The plots in suit khata No. 48 entered in the joint kabja of Jitan and Atma Ram continued to be possessed by Jitan and Atma Ram and after the death of Atma Ram his shares of land came in possession of Jitan Ram. The plots in suit khata No. 48 entered in the joint kabja of Jitan and Atma Ram continued to be possessed by Jitan and Atma Ram and after the death of Atma Ram his shares of land came in possession of Jitan Ram. It is also contended that after the death of Mana and Kishun, their sons came in possession of the lands held by them in the suit khata and after the death of Jitan, the defendants had paid rent to the landlords and they are also paying rent after vesting to the State of Bihar on grant of receipt in their names in respect of the lands which were specifically entered in the record of rights to be in possession of Jitan and Atma Ram.It is the further case of the defendant No. 2 that Atma Ram never died leaving behind Mana and Kishun as his close heirs so the question of increasing the share of those two brothers from four annas to six annas is a myth. According to this defendant No. 2, as partition was already done by metes and bounds under three separate takhtas, as stated above, there was no question of partition again and the plaintiffs and defendant No. 1 are never entitled to six annas share in the suit land described in Schedule B of the plaint. The plaintiffs have got only two annas share in the suit khata No. 43 on adjustment after their shares in khata No. 91. On these contentions, the dismissal of the plaintiffs suit has been sought for. 5. In the written statement filed by defendants Nos. 3 to 18, they have practically supported the claim of the plaintiffs, although they stated their cases in their own way. For and on behalf of the minor defendants, guardian ad litem had also filed a written statement. 6. 5. In the written statement filed by defendants Nos. 3 to 18, they have practically supported the claim of the plaintiffs, although they stated their cases in their own way. For and on behalf of the minor defendants, guardian ad litem had also filed a written statement. 6. On the basis of the pleadings of the parties, following issues were framed :(1) Have the plaintiffs got cause of action for the suit?(2) Is the suit as framed maintainable?(3) Is the suit barred by law of limitation and adverse possession?(4) Is the suit barred by law of estoppel, waiver and acquiescence?(5) Is the suit bad for non joinder of parties?(6) Is the suit barred by res judicata?(7) Is the suit properly valid and Court-fee paid sufficiently?(8) Is the suit land including the lands of khata No. 91 had already been partitioned before the survey operation?(9) Is there any unity of title and unity of possession between the parties with respect to the suit land?(10) Are the plaintiffs entitled to a decree for partition, if so, what is their share in the same?(11) To what relief or reliefs, if any, are the plaintiffs entitled to? 7. Regarding Issue No. 7, it was already decided as a preliminary issue and after the valuation was fixed, the plaint was amended accordingly. Issue No. 6 on the point of res judicata has also been decided in favour of the plaintiff as the earlier partition suit No. 116 of 1969 filed by the descendants of Kishun Ram could not be a res judicata. Earlier suit had never been decided finally rather it was dismissed for default. This point has also not been pressed by the learned counsel for the appellant before this Appellate Court also. The vital issues being Issue Nos. 5, 8, 9 and 10 were taken up together by the learned Court below and on consideration of documentary and oral evidence adduced by the parties, came to the finding that the suit khata land was never partitioned earlier as claimed from the side of the contestant defendant No. 1 and that the plaintiffs are entitled to a partition of their share of land in the suit khata in respect of their share to the extent of three annas share in respect of plaintiff alone. The other issues i.e. Issue Nos. The other issues i.e. Issue Nos. 2, 3, 4, 1 and 11 being related issues to the main issues were decided in favour of the plaintiffs, hence the suit was decreed as mentioned above. 8. Mr. Debi Prasad, Senior Advocate appearing for and on behalf of the defendant No. 2 appellant has attacked the impugned judgment on the following grounds :(i) That the learned Court below has committed error of law in fixing share of the plaintiffs;(ii) That the Court below has committed error of law in putting the burden on the defendants regarding proof of factum of partition being made under metes and bounds earlier;(iii) That the learned Court below has not at all construed the fact that from the admission of the plaintiffs in their plaint and oral evidence the notion of joint Hindu family had already been disrupted and that definite shares were there in respect of parties as per the revenue records, Ex. D in respect of suit khata and as such it has been submitted by Mr. Debi Prasad that the whole judgment is based on erroneous approach of law and the same requires to be reversed. 9. Mr. N. K. Prasad, Senior Advocate appearing on behalf of the plaintiffs-respondents has controverted all the submissions and the grounds taken by Mr. Debi Prasad by referring to legal position and relying on the evidence adduced by the parties including that of documentary evidence supported the impugned judgment in toto. 10. On the first ground regarding the ascertainment of share of the plaintiffs and defendant No. 1, it is the contention of Mr. Debi Prasad that as per admitted facts, Atma Ram and Bhagirath Ram, who was a blind one remained joint and on Bhagirath death his son Jitan remained joint with Atma Ram and on death of Atma Ram issueless the property of Atma Ram devolved on Jitan alone. If it is accepted on the position of Kabjawari entries being made in Ext. D and the admissions being made from the side of the plaintiff, both in their plaint and in oral evidence that the brothers from the very beginning were living separately and possessing also the lands separately. 11. According to Mr. Debi Prasad, it was the assertion of defendant-appellant from the very beginning that Jitan had inherited the property of Atma Ram as he was living with him jointly after the separation being made. 11. According to Mr. Debi Prasad, it was the assertion of defendant-appellant from the very beginning that Jitan had inherited the property of Atma Ram as he was living with him jointly after the separation being made. According to him, if such separation be not construed as being disruption of family property by partition by metes and bounds then also the position remains that Bhagirath and Atma Ram were separated from other two brothers and as such the position of law remains that the property would be devolved on Jitan unless being re-united to the joint family but not only to the existing living brothers. In the alternative, his submission is that even if it is construed that there was no partition or disruption of joint Hindu family then also on the death of Atma Ram issueless his share shall come to joint coparcenary and share cannot be defined to the surviving coparceners at that stage and then the share of Atma Ram to the extent of 1/4th would be devolved by stirpes on the coparceners wherein Jitan is also a coparcenery representing one of the brother Bhagirath, then his 1/4th share should be devolved in three parts, namely, 1/12th to Bhagirath heirs, 1/12th to Mana Rams heirs and 1/12th to Kishun heirs. Plaintiffs represent Mana Ram half share as defendant No. 1 represents the other half of Mana Ram then the plaintiffs would get 1/8th share from the original share of Mana Ram and the half of Atma Ram 1/12th share i.e. the plaintiffs would get 1/8th + 1/24 = 1/6 only and in no case they can have three annas share as described by the learned Court below. 12. At the very first submission, Mr. N. K. Prasad, Senior Advocate appearing for the plaintiffs-respondents had agreed to that by submitting that the calculation of shares might be as proposed by Mr. Debi Prasad, but afterwards he has changed his position by submitting that the position of law on partition as held by the Apex Court reported in 1980 SC 1173 (Kalyani through her legal heir V/s. Narayanan). In that judgment, concept of joint Hindu family coparcenery and how disruption being made on principle of Hindu law have been discussed with the definition of shares. Reference have been made to the monumental judgment of the Privy Council in Palani Ammal V/s. Muthuvenkatachala Moniagar, AIR 1925 PC 49. In that judgment, concept of joint Hindu family coparcenery and how disruption being made on principle of Hindu law have been discussed with the definition of shares. Reference have been made to the monumental judgment of the Privy Council in Palani Ammal V/s. Muthuvenkatachala Moniagar, AIR 1925 PC 49. Regarding the devolution of share, it was observed in that judgment of the Privy Council in the following manner (at page 50) :"But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special arrangement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them."On the basis of that analogy in P. Ammal case, the Apex Court in Bhagwan Dayal V/s. Mst. Rewti Devi, AIR 1962 SC 287 held :"The general principles is that every Hindu family is presumed to be joint unless the contrary is proved. But, this presumption can be rebutted by direct evidence or by course of conduct. It is also stated that there is no presumption that when one member separates from other the latter remain united, whether the latter remain united or not must be decided on the facts of each case." 13. Thus, devolution of share in a coparcenery Hindu family also depends upon as to the disruption of the joint Hindu family. It is also stated that there is no presumption that when one member separates from other the latter remain united, whether the latter remain united or not must be decided on the facts of each case." 13. Thus, devolution of share in a coparcenery Hindu family also depends upon as to the disruption of the joint Hindu family. In the present case, from the side of the plaintiffs, it was contended that four brothers were possessing separately their property and they remained separate also in their mess but that separation was not to the extent of separation of property by metes and bounds and disruption of the joint Hindu family. From the side of the defendants, it is the case that there was partition by metes and bounds but Bhagirath and Atma Ram remained joint and other two brothers were separated. Kishun Ram heirs in the earlier Partition suit claimed that the property was never been disrupted by partition by metes and bounds. The same is the case of the present plaintiff who represents the share of Mana Ram. It is also the case of defendant that after Bhagirath death, Atama Ram remained joint with his nephew i.e. Bhagirath son Jitan and thus Atma Ram share has been totally devolved to Jitan. If there was no partition then the question of Atma Ram share devolved either to Jitan fully or to surviving brothers Mana Ram and Kishun Ram specially, cannot be accepted in any way. After Atma Ram death, if the family was joint then the share of Atma Ram who died issueless was devolved on the joint family itself for the purpose of devolution to the remaining coparceners. 14. In that way, I do not find any force in the submission of Mr. N. K. Prasad, Senior Advocate appearing on behalf of the plaintiff-respondent that the decree granted by the learned court below showing the devolution of Atma Ram property being half and half to the heirs of Mana Ram and Kishun Ram alone, rather his share must be devolved on all the coparceners including that of Jitan for the purpose of defining the shares.In that way, I find force in the submission of Mr. Debi Prasad, Senior Advocate appearing on behalf of the appellant. 15. The decree granted in favour of the plaintiffs for three annas is not correct. Debi Prasad, Senior Advocate appearing on behalf of the appellant. 15. The decree granted in favour of the plaintiffs for three annas is not correct. Even if there was no partition amongst the coparceners then for the purpose of partition the share of the plaintiffs shall come up only as 1/6th in the suit khata and not more than that.Thus, the first point is decided to the extent that the decree granted for three annas share to the plaintiff is not correct, rather it should be 1/6th over the suit property in favour of the plaintiffs. 16. The second and third point raised from the side of the defendant-appellant are inter-related and as such taken up together.It is true that unless rebutted the presumption remains of jointness in a Hindu joint family that too in the Hindu coparcenery under the Mitakshara Hindu School of Law. When a party wants to rebut such presumption then definitely the burden remains on him, but in a civil suit when both parties have adduced evidence on the disputed points of fact then onus of proof remains an academic one than to be applied in proper sense. In the plaint, the plaintiffs never claimed that the property remained in joint possession of all the co-sharers or the coparceners rather the case of the plaintiff is that the coparceners in the joint family since days of their predecessors were possessing separately the suit property by remaining in separate mess but they have claimed that such possession separately was only by convenience and not by partition by metes and bounds. This jointness of Hindu family and its disruption even not by partition by metes and bounds have come up to the various Courts in various ways. It is now the settled principle of law as enunciated by the Apex Court on the principles laid down by the Privy Council and also by different High Courts that by the go of the day when the members in the joint family are increasing day to day then the notion of jointness of the Hindu family becomes weak and disruption comes automatically by way of possession of their shares even if there is no partition by any deed or by partition as contemplated by metes and bounds. But, such factum always remained to be seen from the circumstances of each case. But, such factum always remained to be seen from the circumstances of each case. Only because there is possession of the sharers in the joint family separately, it cannot be construed that the joint family has been disrupted and the notion of jointness had totally been given go bye and it should be construed that the property has been partitioned amongst the sharers. But, if such separate possession is found to be on the basis of definite shares then there is a presumption that the family has been disrupted. 17. Mr. Debi Prasad has strenuously argued on the admission on the part of the plaintiffs in paras 4, 5 and 9 of the plaint wherein the plaintiffs have claimed that they have got separate possession since the days of their predecessors and that another joint family property namely khata No. 91 was already partitioned by metes and bounds amongst the share holders. 18. I have scrutinised those paragraphs as referred to by Mr. Debi Prasad. In none of those paragraphs, the plaintiffs have asserted that there was partition but they were stating all along that there were never any partition by metes and bounds, but separate possession was there since before the survey settlement between the original four brothers and even after the death of Atma Ram also the property remained joint without being partitioned by metes and bounds and separate possession remained amongst the heirs of brothers.In respect of khata No. 91 on which much stress has been given, was never admitted by the plaintiffs that the said khata belonged to the joint coparcenery. Khata No. 91 admittedly was recorded in the name of Rajli Devi, who happened to be the daughter of Mohan Kurmi and it is the case of the plaintiffs that such property of Rajli Devi came to Mana and Kishun Ram alone and the said khata property had been partitioned by metes and bounds long back between two brothers of Mana and Kishun half and half and they are possessing so. 19. Thus, I do not find that there is any admission from the side of the plaintiffs regarding the partition amongst the coparceners in the joint Hindu family. Khata No. 91 could never been proved to be belonged to Mohan Kurmi and that the same was partitioned along with khata No. 48 amongst the shares holders or the coparceners. 19. Thus, I do not find that there is any admission from the side of the plaintiffs regarding the partition amongst the coparceners in the joint Hindu family. Khata No. 91 could never been proved to be belonged to Mohan Kurmi and that the same was partitioned along with khata No. 48 amongst the shares holders or the coparceners. The oral statement to that effect can have no bearing when there is revenue records showing khata No. 91 to be recorded in the name of Rajli Devi alone and after her in the name of Mana and Kishun Ram. 20. In this respect, Mr. N. K. Prasad, appearing on behalf of the plaintiffs-respondents has referred to the admissions made by the defendant No. 2 appellant in paras 5 and 12 of the written statement. According to the defendant, the lands belonging to Mohan Kurmi was partitioned amongst the brothers before the Survey settlement and as such Ext. D in respect of suit khata was issued showing entries of separate possession of the brothers and analogy has been drawn in respect of khata No. 91 but it was admitted by the defendant No. 2 appellant in the written statement that khata No. 91, which is not the subject-matter of this suit was issued solely in the name of Rajli Devi. Nowhere it has been stated or proved by any cogent or reliable evidence that khata No. 91 was also the property of Mohan Kurmi and as such on the death of Mohan Kurmi the same had been devolved to the four brothers of Mohan Kurmi, rather in para 12 of the written statement, the defendant No. 2 appellant had admitted that khata No. 91 was issued in the name of Rajli Devi and it was agreed upon that Mana and Kishun Ram would maintain Rajli Devi and that the property would be devolved on them alone on the death of Rajli Devi. On what basis only two brothers had been given that property has not been stated clearly except that Rajli Devi was dependent on the two brothers alone and as such those properties of khata No. 91 had been devolved on two brothers and that on partition by metes and bounds khata No. 91 property has been possessed by Kishun and Mana Ram for half and half definite share. Rather this statement in para 12 of the written statement supports the plaintiff case that khata No. 91 was partitioned long back by metes and bounds. When khata No. 91 has been issued in the name of Rajli Devi alone in the revenue records in the cadestral survey then that alone belies the defence case that khata No. 91 and khata No. 48 being the ancestral property of Mohan Kurmi had been partitioned by metes and bounds long before the survey settlement. Practically, when khata No. 91 has been issued in the name of Rajli Devi alone, it does not lie on the mouth of the defendant No. 2 that the said property was also partitioned before the survey settlement between Mana Ram and Kishun Ram. 21. Mr. N. K. Prasad, Senior Advocate has given much stress on such statements made in para 12 of the written statement of the defendant No. 2, to the effect that the whole case of partition by metes and bound before the survey settlement of the property recorded in khata Nos. 48 and 91 had been partitioned by metes and bounds before the survey settlement operation is totally a myth and this goes to show that there was no partition by metes and bounds of the property of Mohan Kurmi. Analogy of khata No. 91 has got no bearing in respect of property of khata No. 48 which is the subject-matter of this suit, because admittedly as per the record of rights khata No. 48 belonged to Mohan Kurmi and devolved on the four brothers. As regards the separate entries with regard to possession of the share holders or coparceners as being reflected in Ext. D go to show that the coparceners were possessing separately lands of khata No. 48 as per convenience only. That there was no partition by metes and bounds can also be found from Ext. D itself with reference to the separate entries to the effect that the jointness was not totally being disrupted, rather Jitan son of Bhagirath always remained joint with Atma Ram and possession were also shown as Kabjawari in Ext. That there was no partition by metes and bounds can also be found from Ext. D itself with reference to the separate entries to the effect that the jointness was not totally being disrupted, rather Jitan son of Bhagirath always remained joint with Atma Ram and possession were also shown as Kabjawari in Ext. D jointly between Jitan and Atma Ram and it has been admitted by defendant No. 2 also that his father Jitan remained joint with Atma Ram and as such Atma Ram share had been devolved on Jitan alone by survivorship.That matter has also been dealt by me in the foregoing paragraphs. That Kishun and Mana Ram had got less possession in respect of land in khata No. 48, was being explained by the defendant No. 2 by referring to khata No. 91 to the effect that as Mana Ram and Kishun Ram got shares in Khata No. 91 to the exclusion of Jitan and Atma Ram, they were given less shares in khata No. 48 while partition was being made by metes and bounds. This analogy, as has been stressed by Mr. Debi Prasad, Senior Advocate, appearing for the appellant has got no bearing as it has already been found as per discussions above that khata No. 91 stands completely on different footing than that of suit khata No. 48. This matter had ben dealt by the learned Court below in paragraphs 22 and 23 of the impugned judgment. The learned Court below has rightly held that khata No. 91 by its record of rights shows that Most. Rajli Devi was the absolute owner of that khata land and it can have no bearing with khata No. 48. The question of non joinder of other share holders in respect of khata No. 91 not being included in the suit and being bad under Order 2, Rule 2, C.P.C. has also got no bearing, as already stated, khata No. 91 stands totally on different footing. 22. By different notings of Kabjawari in khata No. 48 (Ext. D), the contention of the defendants was that the lands were partitioned by metes and bounds but if shares are calculated it could be found and admitted by the defendant No. 2 that the shares of Kishun and Mana were much less than that of Jitan vis-a-vis of Jagannath, the defendant No. 2. D), the contention of the defendants was that the lands were partitioned by metes and bounds but if shares are calculated it could be found and admitted by the defendant No. 2 that the shares of Kishun and Mana were much less than that of Jitan vis-a-vis of Jagannath, the defendant No. 2. Explanation given of less share with reference to khata No. 91 has got no bearing as already stated and if partition is there by metes and bounds and definite shares are being given to the share holders then there may be a presumption of partition or disruption of joint family, but when the shares are unequal then the contention of the plaintiffs that possession were being mentioned separately as per convenience has got much better footing than that of disruption of suit property. Moreover, if suit property was partitioned, taking for arguments sake, was proper then also that there was joint possession of Atma Ram and Jitan has not been explained. It was the case of the plaintiffs that on the death of Bhagirath, Jitan being minor was being looked after by his uncles in general and in particular by Atma Ram, therefore, the Jitan property or share was being looked after by Atma Ram as guardian of Jitan during his minority, but that does not show that there was disruption of joint family. Moreover, it is stated that after the partition the share of Atma Ram has been devolved on Jitan alone which means that there was re-union of divided brothers after the death of Atma Ram. But such re-union has never been pleaded either by the defendant No. 2 or the plaintiffs. The plaintiff has not taken this plea of re-union as their case is of unity of title. Defendant No. 2 has taken the plea of partition and the again re-union on the death of Atma Ram, although not specifically stated, but via-media it has been pressed when it was stated that Atma Ram share has been devolved on Jitan. If a separated brother is re-united or his heirs have re-united then the property comes as a whole to the joint family not to a particular share holder, so the question of re-union is of no avail in the present case. 23. DW-5, Chiran Mahto is the son of defendant No. 2. If a separated brother is re-united or his heirs have re-united then the property comes as a whole to the joint family not to a particular share holder, so the question of re-union is of no avail in the present case. 23. DW-5, Chiran Mahto is the son of defendant No. 2. He has deposed to the effect that Mohan Kurmi during his life time had partitioned the lands and gave one share to Bhagirath, Atma Ram, one share to Mana Ram and one share to Kishun Ram and that thereafter there has been no partition in the family. This is against the whole case of the defendant No. 2 in the written statement and falsified the case of partition. DW-3, Samju Mahto and DW-4, Rameshwar Giri had also made attempt to plead the case of partition but the evidence of DW-3 and DW-4 are contradictory to each other and also to that of DW-5. So, the factum of previous partition amongst the share holders or the coparceners could not be proved. 24. It is the contention of Mr. Debi Prasad by referring to AIR 1938 PC 65, Mt. Anurago Kuer V/s. Darshan Raut, AIR 1946 Patna 278, Mt. Ramjhari Kuer V/s. Deyanand Singh and AIR 1962 SC page 287, Bhagwan Dayal V/s. Reoti Devi that the burden of non-partition shifts to the plaintiffs in view of the admissions made by the plaintiffs in the plaint that they were possessing separately the suit properties and the entries being made long back in the Cadestral Survey Operation (Ext. D). 25. In this respect, even if it is taken to be correct that the burden shifts to the plaintiffs then also the presumption of jointness remains in favour of the plaintiffs and the same has been re-inforced by the evidence of an independent witness, PW-7, Abdul Karim. 26. On the above discussions, I find that the learned Court below has rightly held that there was no previous partition amongst the four brothers or their successors and the plea of partition as taken by the defendants had been falsified not only from oral evidence but by the stand taken by the defendant No. 2 in his pleadings and also by the evidence of DW-5. Thus, I am totally in agreement with the findings of the learned Court below that there was no partition in respect of the suit khata No. 48 and the property remained joint and as such the plaintiff has got every right to claim partition in respect of his share. But, in respect of the decree granted by the learned Court below, I hold that the share as has been calculated by the learned Court below was not proper and the plaintiffs are entitled to only 1/6th share to the exclusion of defendant No. 1 and such share can be partitioned and preliminary decree should be passed in respect of partition for 1/6th share of the plaintiffs. 27. Thus, this appeal is partly allowed with a modification in the share of the plaintiffs as mentioned above, but retaining the other reliefs granted by the learned Court below.In the facts and circumstances of the case, no cost is awarded to either of the parties.Appeal partly allowed.