Judgment D.N.Prasad, J. 1. This first appeal is directed against the judgment and decree passed by Shri R.K. Tuli, 3rd Additional Sub-Judge, Palamau at Daltonganj in Partition Suit No, 66 of 1980 by which the learned Sub-Judge decreed the suit in part, 2. The case of the plaintiffs/respondents in brief as stated that the plaintiffs and defendants are the descendants of the common ancestor Bhulan Ram who was the survey-recorded Raiyat of land of Khata Nos. 42, 89, 110, 118 of the village Dhub, P.S. Panki, District Palamau, Bhulan Ram, who was the recorded Raiyat of the land in suit died leaving behind five sons, namely Fulchand Ram, Deochand Ram, Bandhu Ram, Ghanshyam Ram and Sheo Ram. After the death of Bhulan Ram, Deochand Ram died in about 1952 without leaving any issue and after his death, his share of 1/5th was devolved to four brothers. It is further claimed that Fulchand Ram also died in or about 1954 leaving behind two sons, namely Dharamdeo Ram and Jageshwar Ram. Sheo Ram also died in the year 1962 leaving behind one son, namely Guljar Ram and two daughters, Kamli Devi and Kunti Devi, defendant Nos. 7, 9 and 10, who were born from his first wife, Panchiya Devi, who predeceased her husband and defendant No. 8, Rajendra Ram born from the second wife of Sheo Ram, namely, Tepi Devi. It is also claimed that Tepi Devi remarried with Aklu Ram after the death of Sheo Ram and also relinquished all her right and interest in the property of Sheo Ram by means of two registered sale-deeds dated 24-1-1978 and 16-8-1978 executed in favour of the plaintiff Nos, 9 and 11 and also in favour of plaintiff Nos. 5 to 11. The plaintiff No. 1 along with his sons who are the Karta/Manager and representative of their respective joint family are showing as such owned and possessed l/4th share besides 1/10th share acquired by plaintiff Nos. 5 to 11. The members of four branches of Bhulan Ram are in separate possession of the separate land and cultivating the lands according to the respective shares according to the convenience. On account of suit land remaining joint between the parties, the plaintiffs fell greatly handicapped in making any improvement in the suit land and, therefore, the plaintiff requested the defendants for an amicable partition by metes and bounds, which was evaded, hence the suit. On account of suit land remaining joint between the parties, the plaintiffs fell greatly handicapped in making any improvement in the suit land and, therefore, the plaintiff requested the defendants for an amicable partition by metes and bounds, which was evaded, hence the suit. 3. The defendant Nos. 1 to 7 and 9 to 11 have filed a joint written statement, claiming therein that the suit as framed is not maintainable. It is also claimed that the defendant No. 8, Rajendra Ram is not the son of Sheo Ram. When Tepi Devi came for the first time to live with Sheo Ram. she had a son namely Rajendra Ram already in her lap born from her former husband, Bhikari Ram. Deochand Ram had 1/5th share in the property left by Bhulan Ram which was sold for valuable consideration of Rs. 2,000.00 to Jeo Narain Ram and others by virtue of registered sale-deed dated 16-5-1952 sons of Jageshwar Ram, defendant No. 2 and the purchasers are coming in peaceful possession over the same. Bhulan Ram had two wives, from one wife, Fulchand Ram and Deochand Ram were born whereas from second wife, Bandhu Ram, Ghanshyam Ram and Sheo Ram were born. It is denied that Fulchand Ram had 1/4th share in the suit land, rather the defendant Nos. 1 and 2 sons of Fulchand Ram have got only 1/5th share in the suit land. The defendant No. 8 Rajendra Ram was never the son of Sheo Ram, rather he was brought by Tepi Devi in her lap and so there was no occasion for the defendant No. 8 to inherit any part of the suit land, therefore, the sale-deeds executed by the defendant No. 8, Rajendra Ram dated 24-7-1978 and 16-8-1978 in favour of the plaintiff Nos. 9 to 11 and 5 to 11 respectively are bogus and ineffective sale-deeds. After the death of Fulchand Ram and Deochand Ram, there was amicable partition by metes and bounds among all the surviving co-sharers and all of them were allotted separate Takhta, according to their respective shares. Though, the partition was oral but all the co-sharers acted in accordance with the said partition. All the plaintiffs and defendant Nos, 1 and 2 as well as defendant No. 3 are entitled to only 1/ 5th share. Defendant Nos. Though, the partition was oral but all the co-sharers acted in accordance with the said partition. All the plaintiffs and defendant Nos, 1 and 2 as well as defendant No. 3 are entitled to only 1/ 5th share. Defendant Nos. 9 and 10 have also sold their interest to defendant No. 11 and her husband defendant No. 7. There is no jointness in the suit land. All the parties have also mutated in the Shresta of State of Bihar over the lands of their share as the defendant No. 7 has also been mutated alter due publication and as such the plaintiffs have got no cause of action for the suit and the suit is fit to be dismissed. 4. Considering the pleadings of both sides, the learned Court below framed as many as seven issues for consideration of the suit, which are as follows: I. Is the suit as framed maintainable? II. Have the plaintiffs got any valid cause of action? III. Is the suit lands properly valued and the Court fee paid sufficient? IV. Is the suit bad for non-joinder and mis-joinder of the parties? V. Have the plaintiffs got unity of title and possession over the suit lands and are they entitled to get a decree for partition? VI. What is the share of the plaintiffs in the suit land? VII. To what other reliefs, the plaintiffs are entitled to? 5. Both parties adduced oral as well as documentary evidence in the lower Court and after considering the whole evidence, the learned Court below decreed the suit in part by the impugned judgment dated 14-12-1983. Not being satisfied with the judgment and decree, the appellant preferred this appeal and there is specific and main objection raised by the appellants that the lower Court neither framed any specific issue as to whether Rajendra Ram was the son of Sheo Ram when there was specific pleadings in the written statement on this score. 6. The learned Counsel appearing on behalf of the appellants, at the very outset, submitted that the suit for partition is not maintainable as it is an admitted position between the parties that there was a partition already taken place amongst the sons of Bhulan Ram and demands are also running in the name of the respective share-holders so the partition cannot be reopened again. It is also submitted that both parties are also involved in transaction inter se of their respective lands of which they are in possession after the said partition. It is further argued that Deochand Ram already sold his lands of his share as back as in the year 1952, in favour of the sons of defendant Nos. 1 and 2, but they have not been made parties in the suit and as such this suit is also not maintainable for want of necessary party. The learned Counsel further argued that Rajendra Ram is not the son of Sheo Ram, rather he was brought by Tapi Devi, widow of Sheo Ram in her lap and as such Rajendra Ram has got no any right or title over the lands belonging to Sheo Ram and, therefore, the sale-deeds executed by Rajendra Ram are said to be illegal. The learned Counsel appearing for the appellants also relied upon the cases reported in -- -- and -- . 7. On the other hand, the learned Counsel from the side of the respondents contended before me that the suit for partition is maintainable as there was no partition took place by metes and bounds. It is also submitted that Rajendra Ram is the son of Sheo Ram which also finds entered in the Chowkidari Register, which is the public document and Rajendra Ram has rightly executed the sale-deed in the name of the sons of Bhuneshwar Ram and Rameshwar Ram, plaintiff Nos. 4 and 3 respectively. The learned Counsel for the respondents also relied upon the cases reported in 1990 Vol. II PLJR, 940 and -- . 8. Before appreciating the contentions of the learned Counsel of both sides, it is pertinent to deal with the admitted position of the parties in the suit and the evidence on record adduced. 9. It is an admitted position that Bhulan Ram was the common ancestor who had left behind five sons namely, Fulchand Ram, Deochand Ram, Bandhu Ram, Ghanshyam Ram and Sheo Ram. It is also admitted in para-3 of the plaint itself that all the five sons of Bhulan Ram had separated from each other in mess and residence soon after their fathers death. It is also an admitted position that Deochand Ram son of Bhulan Ram died in the year 1952 whereas Fulchand Ram died in the year 1954. It is also admitted in para-3 of the plaint itself that all the five sons of Bhulan Ram had separated from each other in mess and residence soon after their fathers death. It is also an admitted position that Deochand Ram son of Bhulan Ram died in the year 1952 whereas Fulchand Ram died in the year 1954. There is also no denial that Sheo Ram died leaving behind his son Guljar Ram and two daughters, Kamli Devi and Kunti Devi. There is only dispute as to another defendant No. 8, Rajendra Ram is the son of Sheo Ram. 10. Both parties adduced oral as well as documentary evidence in the case and there is a specific case of the defendants that partition has already taken place at the demand of all the share-holders who are also residing separately and all the co-sharers are enjoying the land of their share separately and so there is no unity of title and interest between the parties. 11. P.W. 5, the plaintiff No. 2 admitted in clear terms in para-10 of his cross-examination that all the five sons of Bhulan Ram separated after 8-9 years of death of Bhulan Ram and their demand was also separated in the Shresta of Zamindari according to Batwara. He further admitted that all the sons obtained 1/5th share according to the said partition. He further admitted that he cannot say as to whether all the defendants have got the share in the suit lands or not as well as the sons of Jageshwar and Dharam, defendant Nos. 2 and 1 have got their separate demands in respect of lands purchased by them. It is pertinent to note here that Deochand son of Bhulan had already executed a sale-deed in respect of the lands of his own share in favour of the sons of Dharam and Jageshwar Ram as back as in the year 1952 and admittedly the mutation was also made in favour of the sons of Dharam and Jageshwar for the said lands since 1952, which fact has been admitted by the plaintiff, P.W. 5 himself. 12. P.W. 6 also admitted that the Batwara was already held as indicated in paras 2 and 6. 12. P.W. 6 also admitted that the Batwara was already held as indicated in paras 2 and 6. P.W. 7 claimed in his evidence that after the death of Bhulan Ram partition had already taken place and all the members of the family also mutated in the Shresta in accordance with their shares and they started cultivating the lands separately. He further admitted in para-8 that sons of Dharamdeo and Jogeshwar are also cultivating the lands separately and the demand is also separate is their names. 13. I have already discussed that, they have purchased the lands from Deochand as back as in the year 1952 by registered sale-deed. D.W. 5 the defendant No. 5 claimed in his evidence that there was a partition and the said partition took place after the death of Deochand and Fulchand and all the members are cultivating the lands according to their shares. D.W. 6 claimed that Deochand already sold his lands in favour of the sons of Jageshwar and Dharamdeo, who are coming in possession over the same. He further claimed in his evidence that the partition also took place between the parties and all of them cultivating the lands according to the said partition. D.W. 7, the defendant No. 1 also admitted that the partition took place. According to him, the demands of all the members are running separately for the lands of theirs share respectively. D.W. 9. Sarpanch admitted in para 2 that all the lands have already been partitioned and all the members are also coming in possession, according to their shares. He further deposed that the said partition took place about 30 years ago. D.W. 10 also stated that partition already had taken place and Deochand had sold his share of land in favour of sons of Jageshwar and Dharamdeo and they are also coming in peaceful possession over the said lands. D.W. 11 claimed to be Ex-Zamindar, stated that the lands of the parties was already partitioned and all the members are coming in separate possession accordingly. He further stated that Deochand sold his lands and the purchasers are coming in possession over the same. 14. It is an admitted position as claimed by the plaintiff/respondents themselves that all the sons of Bhulan Ram already separated in mess and residence soon after their fathers death. It is also clear from the sale deed of 1952, Ext. He further stated that Deochand sold his lands and the purchasers are coming in possession over the same. 14. It is an admitted position as claimed by the plaintiff/respondents themselves that all the sons of Bhulan Ram already separated in mess and residence soon after their fathers death. It is also clear from the sale deed of 1952, Ext. B/1 that Deochand, son of Bhulan Ram had sold his land of his share as back as in the year 1952 in favour of the sons of Jageshwar Kahar and Dharamdeo Kahar, defendant Nos. 1 and 2 and the purchasers also got themselves mutated in the Shreshta of Zamindar as well as State of Bihar and they are coming in possession of the said lands separately. It is well settled that the mutual transaction between the two members of the family is a strong evidence of separation. In the present case there is a definite and unambiguous indication that the partition already held after the death of common ancestor, Bhulan Ram, the plaintiff, P.W. 5 also admitted in his evidence in clear terms that the partition had already taken place, Ext. B/1, the sale-deed of 1952 further proves about the mutual transaction held as back as in the year 1952. It. is also clear in the evidence that both parties are dealing with the lands and enjoying the lands separately since the long time. It is true that there is a presumption of jointness in Hindu family but that presumption gets weaker and weaker as time passes and third or fourth generations are found in separate possession of the lands. 15. Partition can also be proved by intention of the parties manifested by their subsequent conduct, by their sale and independent enjoyment of the property, separation in food and residence for long time among the brothers of Hindu family. Independent transaction of property, separate possession and enjoyment of property are sufficient to show that there had been a partition between the parties. 16. In the instant case, it is obvious that both parties are enjoying and possessing the lands of their share since long without any disruption or obstacle. The transaction was also made made as back as in the year 1952 and the purchasers are in peaceful possession over the same. 16. In the instant case, it is obvious that both parties are enjoying and possessing the lands of their share since long without any disruption or obstacle. The transaction was also made made as back as in the year 1952 and the purchasers are in peaceful possession over the same. The evidence both oral as well as documentary adduced coupled with the evidence on the record clearly proves that there was already partition took place between the parties and they are enjoying and in possession over the said lands of their respective shares accordingly. Thus, I find that there is no unity of title and possession between the parties in respect, of the lands in suit. 17. It is pleaded that one of the sons Sheo Ram of Bhulan Ram died in the year 1962 leaving behind Guljar Ram, Kamli Devi and Kunti Devi son and daughters from the first wife Pachia Devi and defendant No. 8, Rajendra Ram, son from his second wife Tapi Devi, whereas the defendants claimed that Rajendra Ram is not the son of Sheo Ram, rather her mother, Tapi Devi had brought him (Rajendra Ram) in her lap born from her former husband. Bhikhari Ram. 18. P. W. 5 stated in his evidence clearly that Rajendra Ram is the son of Sheo Ram. According to him, Rajendra Ram also executed the sale-deed. Ext. 1 and 1/A in respect of the land of his own share by registered sale-deed as back as in the year 1978. D.W. 6 deposed that Rajendra Ram was not the son of Sheo Ram but. he admitted that Rajendra Ram had told some lands in the name of the sons of Bhuneshwar and Rameshwar. There is no denial that Tapi Devi was the widow of Sheo Ram. Not a. single chit of paper has been placed from the side of the appellants to show that Rajendra Ram was the son of Bhikhari Ram, rather from the sale-deed itself, it is obvious that the name of the father described to be Sheo Ram. It further appears from the said deed. Ext. 1 that Ram Kishun Ram, son of defendant No. 1 had signed on behalf of the Rajendra Ram as he had identified at the time of Registration of the sale-deeds, which proves about the admission by the consent of the defendant No. 1 about his father being Sheo Ram. It further appears from the said deed. Ext. 1 that Ram Kishun Ram, son of defendant No. 1 had signed on behalf of the Rajendra Ram as he had identified at the time of Registration of the sale-deeds, which proves about the admission by the consent of the defendant No. 1 about his father being Sheo Ram. Chowkidari Collection Register, Ext, 3 further proves about the parentage of Rajendra Ram has been mentioned in the said Register as "Rajendra Ram son of Sheo Ram" (Ext. A/2) and this Register is the public document, which has been maintained by the officials during the official duty. The name of Guljar Ram, son of Sheo Ram is also mentioned in the said Register, Ext. A/2, who is the elder brother of Rajendra Ram from first wife. The copy of the Electoral Roll has also been filed, which has been marked as Ext. I and the learned Counsel appearing on behalf of the appellants contended before me that the name of Rajendra Ram is not mentioned in the said Electoral Roll. But due to non appearance of the name of Rajendra Ram in the said Electoral Roll, it cannot be inferred that he is not the son of Sheo Ram, inasmuch as Chowkidari Register indicates the name of Rajendra Ram as being the son of Sheo Ram and not a single chit of paper coming forward from rival party to show, he is the son of Bhikhari Ram as claimed. 19. Thus, in the above facts and circumstances, it is evident that Rajendra Ram was the son of Sheo Ram. From going through the sale-deed, Ext. 1 series the said Rajendra Ram sold the lands in favour of sons of Bhuneshwar and Rameshwar Ram, the plaintiff Nos. 3 and 4. Admittedly, the sons of Rameshwar Ram and Bhuneshwar Ram, the purchasers have not been made parties in the suit or this appeal. It has come in evidence that after the purchase the sons of Rameshwar and Bhuneshwar Ram, the said purchasers are coming in cultivating possession over the said lands separately. 20. In this view of the matter, in my view, the purchasers being the sons of Rameshwar and Bhuneshwar Ram, who are holding the lands separately, can be said to be the necessary party in the suit, 21. 20. In this view of the matter, in my view, the purchasers being the sons of Rameshwar and Bhuneshwar Ram, who are holding the lands separately, can be said to be the necessary party in the suit, 21. As discussed above, it is evident that there is no unity of title and possession and both parties are dealing with the lands exclusively and separately and enjoying the usufructs, according to their share and as such in the above facts and circumstances, I find that the learned Court below committed error in decreeing the suit, which is fit to be set aside, 22. In the result, I find merit in the appeal, which is accordingly allowed. Thus, the judgment and decree passed by the lower Court are hereby set aside. No order as to costs.