JUDGMENT : L. Mohapatra, J. - Defendants are the appellants before this Court against a confirming judgment. 2. Plaintiffs-respondents had filed a suit for partition of properties mentioned in Schedule-B of the plaint claiming half share therein. Case of the plaintiffs-respondents is that the land in dispute situate in Chakundapal village under Khata No. 32 measuring Ac. 14.63 decimals. One Chakra is the common ancestor who had two wives, Jana and Pana., Children of Pana had got separate properties in a civil suit earlier instituted for partition. Parties in the present suit are children of Jana through Chakra. Claim of the plaintiffs-respondents is that the lands having not been partitioned by metes and bonous, unequal shares are being enjoyed by the parties which they possess for convenience. It is further alleged in the plaint that the defendants-appellants are in enjoyment of share more than the plaintiffs and because of the aforesaid reason plaintiff No. 1 requested the defendants for partition. Since there was no response from the side of the defendants, suit was filed claiming half share in the entire property of Ac. 14.63 decimals. 3. Defendants-appellants filed written statement wherein it is stated that the suit lands belong to Mukunda who is one of the sons of Chakra through Jana. Their further case is that Mukunda acquired the suit lands and after him, his children are possessing the same. The suit lands having been acquired separately and separate patta having been granted, there is no scope of any partition of the suit properties. Further case of the defendants is that the suit properties were never under possession of the plaintiffs-respondents and the same being separate properties of Mukunda, the defendants-appellants by way of succession are enjoying the same. 4. Trial Court on consideration of the pleadings of the parties framed the following issues : (1) Is the suit maintainable ? (2) Is there any cause of action to bring the suit ? (3) Is the suit property self-acquired property of the defendants being acquired property of Mukunda, the ancestor of the defendants ? (4) Was there any previous partition between Mukunda and Pati ? (5) Is the suit barred by limitation ? (6) Is the suit suffers from non-joinder of parties, res judicata and estoppel ? (7) Any other relief, the plaintiff is entitled to ? (4) Was there any previous partition between Mukunda and Pati ? (5) Is the suit barred by limitation ? (6) Is the suit suffers from non-joinder of parties, res judicata and estoppel ? (7) Any other relief, the plaintiff is entitled to ? While answering issue No. 6 trial Court held that neither the suit is barred for non-joinder of parties nor principles of estoppel could be applied to the facts of the case. While answering issue No. 4 trial Court found that the members of the family of Mukunda and Pati are possessing separately their respective landed properties either by family arrangement or for convenience. While answering Issue No. 3, which is material for the purpose of the case, the trial Court held that the properties in question were acquired when Mukunda and Pati were joint and accordingly their respective successors are entitled to claim share. On the above finding, the suit was decreed and the claim of the plaintiffs-respondents for half share in the properties mentioned in the Schedule-B was allowed. Appeal carried by defendants-appellants before the learned District Judge, Keonjhar having been dismissed on self-same findings, the present appeal has been filed. 5. The appeal has been admitted on the following substantial questions of law : "Whether in view of the decision in F.A. No. 94/76 the earlier suit for partition was not maintainable because of the previous partition and finding of the Courts below, the present suit for partition is maintainable or not ?" 6. Sri, S. Mishra-2, learned counsel appearing for the appellants in reference to the substantial question of law on which the appeal had been admitted argued that the previous suit was in respect of the same properties and therefore the present writ between self-same parties in respect of the same properties of Mukunda and there is no material on record to show that the properties had been acquired by Mukunda and Pati when they were joint. In absence of any such evidence, according to Sri Mishra, findings of both the Courts below that the suit properties are joint properties of Mukunda and Pati cannot be sustained. 7. In absence of any such evidence, according to Sri Mishra, findings of both the Courts below that the suit properties are joint properties of Mukunda and Pati cannot be sustained. 7. Sri, Dash, learned counsel appearing for the respondents, on the other hand, submitted that the earlier suit was between different parties and the properties involved in the present suit had not been partitioned in the earlier suit and therefore the judgment delivered in the earlier suit cannot operate as res judicata so far as the present suit is concerned and accordingly the same is maintainable. So far as the second point is concerned Sri Dash submitted that the evidence on record clearly indicate that the properties in question were acquired when both Mukunda and Pati were joint and therefore Courts below decreed the suit. This being a finding of fact there is no scope for this Court to interfere with the same. 8. So far as the first question is concerned, the judgment delivered in F. A. No. 94 of 1976 has to be looked into which has been marked as Ext.6. From the said judgment, it appears that Chakra, the common ancestor, had two wives namely, Jana and Pana. Jana had three sons namely Sukutia, Mukunda and Pati, whereas Pana, his second wife, had three sons namely Banamali, Kathia and Gangadhar. The suit out of which the aforesaid First Appeal arose was filed by branch of Pana through Chakra against the branch of Jana through Chakra. It further appears that the branch of Pana were in possession of ten acres of land whereas branch of Jana were in possession of 14 acres of land. Trial Court had decreed the suit declaring different shares of the parties therein. Against the said decree the aforesaid First Appeal was filed before this Court. In the First Appeal this Court observed that there was prior partition between branch of Jana and Pana and therefore the suit for partition was not maintainable. Accordingly, the appeal was allowed the suit was dismissed. The present suit is between the members of only Jana's branch and none of the members of Pana's branch are parties. Subject-matter of dispute is partition of 14 acres of land within the members of Jana's branch, whereas the subject-matter of earlier suit was between two branches claiming half share each out of the total 24 acres of land. The present suit is between the members of only Jana's branch and none of the members of Pana's branch are parties. Subject-matter of dispute is partition of 14 acres of land within the members of Jana's branch, whereas the subject-matter of earlier suit was between two branches claiming half share each out of the total 24 acres of land. Since the properties sought for partition are different and the parties are also different, in both the suits, I am of the view that the earlier judgment passed in T.S. No. 16 of 1974-1 of First Appeal No. 94 of 1996 will not operate as res judicata and the present suit is maintainable. 9. So far as the second point is concerned, both the Courts below have found that the properties in dispute were acquired when Mukunda and Pati were in jointness. Said finding of the Courts below is challenged by Sri Mishra on the ground that neither there is any pleading nor any evidence to that effect and in absence of such pleading or evidence, the Courts below committed error on record in giving to such finding. In the plaint in reference to the judgment delivered in First Appeal No. 94 of 1976 it is averred that there is finding in the judgment of the First Appeal that the present suit properties were in exclusive possession of defendants who are successors in interest of late Chakra through his first wife Jana. In para-5 of the plaint it is stated that the suit lands are possessed separately for sake of convenience by successors of Mukunda and Pati and there has not been any partition by metes and bounds. D.W. 1 in his evidence has stated that the suit land has been acquired separately during jointness of Mukunda and Pati. In cross-examination he has stated that he has no objection if the suit properties will be partitioned half and half. D.W.2 in his cross-examination has admitted that the suit land was not partitioned. Evidence of both the witnesses examined on behalf of the defendants-appellants clearly indicate that there was no prior partition between the plaintiffs-respondents and the defendants and the properties were acquired when Mukunda and Pati were joint. D.W.2 in his cross-examination has admitted that the suit land was not partitioned. Evidence of both the witnesses examined on behalf of the defendants-appellants clearly indicate that there was no prior partition between the plaintiffs-respondents and the defendants and the properties were acquired when Mukunda and Pati were joint. Since both Courts below have concurrently found on consideration of evidence that the properties in question were acquired during jointness of Mukunda and Pati and I also found that there is no error in such finding, the second point raised by Sri Mishra also fails. 10. In view of the discussion made above, I do not find any merit in the appeal and the same stands dismissed. Final Result : Dismissed