JUDGMENT : Krushna Ram Mohapatra, J. - In this appeal, appellants, who are defendant Nos. 5, 6 and 7 in Title Suit No. 44 of 1986, assail the judgment and decree dated 8th May, 1991 and 28th June, 1991 respectively passed therein by learned Sub-Judge, Sonepur. One Parasu Patra was the common ancestor in a Hindu joint family. He died leaving behind his five sons, namely, Daman, Chaitan, Abhiram, Sankuri and Pandab. Successors in interest of the branch of Chaitan, Sankuri and Pandab filed Title Suit No. 44 of 1986 for partition contending that Parasu had properties in village Jamgaon and Gandabahal. The eldest son, Daman had separated himself since long by taking his share in village Jamgaon. Other properties in village Gandabahal measuring an area of Ac.20.399 decimals remained joint and the successors in interest of the rest four branches of the common ancestor (Parasu) were enjoying the same jointly. But, for the sake of convenience, they were possessing and cultivating different parcels of the land without any partition between them by metes and bounds. Thus, their names were jointly recorded in the 4th Settlement ROR published in the year 1954 in Khata No. 43 (for short, 'Suit land'). When the matter stood thus, defendants 5 to 7, without consent of other co-sharers, sold an area of Ac.0.630 decimals from out of Ac.1.200 decimals of Plot No. 97 and Ac.0.440 decimals out of Ac.0.920 decimals from Plot No. 96 to defendant No. 10 by Registered Sale Deed on 6th April, 1981. Those were valuable pieces of land of the joint family. When the plaintiffs came to know about such act of defendants 5 to 7, they claimed partition of the suit properties to which the defendants did not pay any heed. Finding no other alternative, the plaintiffs filed the suit for the aforesaid relief. They also prayed that the land sold by defendants 5 to 7 may be allotted and adjusted to their share and in case it is found that they have sold lands in excess of their share, direction should be made to pay compensation for the land they sold in excess of their share. 2. Defendants 1 to 4, 8 and 9 were set ex parte. 2. Defendants 1 to 4, 8 and 9 were set ex parte. Defendants 5 to 7 filed their joint written statement refuting the allegations made in the plaint contending that there was a partition between the five sons of Parasu 70 years back and in that partition, eldest son, Daman, got his share in village Jamgaon. Other four sons got their share of land in village Gandabahal. Each of the five sons were dealing with their share of properties independently by sale, mortgage and otherwise. The legal heirs of Pandab had already disposed of their share. Son of late Chaitan, Jagabandhu, being aggrieved by the act of Pandab, had filed Title Suit No. 39 of 1969 for partition which was dismissed. Hence, the present suit for partition would be barred by res judicata. The entries in the R.O.R. published in the 4th Settlement in 1954, were not correct. Since there was a complete partition in respect of five sons of Parasu, the suit was not maintainable. Hence, they prayed for dismissal of the suit. 3. Defendant No. 10 filed his separate written statement denying the allegations made in the plaint and contended that he was under a bona fide belief that the land including plot Nos. 96 and 97 which he had purchased from defendant No. 5 was his exclusive property. Defendant No. 5 executed the sale deed on 06.04.1981 and delivered possession to him. Defendants 6 and 7 had consented to such sale. Defendant No. 10 after purchase has been residing over the said plots by constructing his residential house. Thus, he contended that the sale was binding on all the co-sharers and the suit was not maintainable being barred by law of limitation. Hence, he prayed for dismissal of the suit as against him. 4. Taking into consideration the rival pleadings of the parties, learned Civil Judge framed as many as seven issues, out of which Issue Nos. 2 and 3 are relevant for consideration in this appeal. The same are reproduced hereunder. "2. Whether the suit properties are joint family ancestral properties of the plaintiffs and defendant Nos. 1 to 9? 3. Whether there was partition of suit properties 70 years back?" 5. Learned Civil Judge considering the materials on record and respective cases of the parties came to the conclusion that the eldest member of the family, namely, Daman has separated himself from the joint family. 1 to 9? 3. Whether there was partition of suit properties 70 years back?" 5. Learned Civil Judge considering the materials on record and respective cases of the parties came to the conclusion that the eldest member of the family, namely, Daman has separated himself from the joint family. He was allotted with properties in the village Jamgaon to his share. The rest of the members continued to remain joint as members of joint family. There was no partition of suit properties 70 years back as alleged by defendants 5 to 7. Thus, the suit properties are liable for partition. Accordingly, learned Civil Judge passed a preliminary decree holding that the plaintiffs 1 and 2 are entitled to 1/4th share, plaintiffs 3 to 9 are entitled to 1/8th share and plaintiffs 10 to 12 are entitled to 1/4th share. The defendants 1 to 8 are entitled to 1/4th share and defendant No. 9 is entitled to 1/8th share. It was further held that the land sold to defendant No. 10 be allotted to the share of defendants 5 to 7 and in case it is found that land sold was in excess of their share, the value of such land in excess of their share would be compensated to their co-sharers accordingly. Being aggrieved by the said judgment and decree, defendants 5 to 7 have filed this appeal. 6. During pendency of the appeal, Gharjugi Patrani (respondent No. 1) having been died, her legal heirs were substituted as respondent Nos. 1(a) to 1(d) vide order dated 19.12.2014. 7. Mr. Mohapatra, learned counsel for the appellants submitted that though it is the admitted case of the parties that Daman, the eldest son, had separated himself and got his share of land in village Jamgaon, but the very separation is not partition. This being a suit for partition his legal heirs ought to have been made parties to the suit and in their absence the suit is not maintainable for non-joinder of necessary parties. Further, Mr. Mohapatra relying upon the decision in the case of Addagada Raghavamma and Another Vs. This being a suit for partition his legal heirs ought to have been made parties to the suit and in their absence the suit is not maintainable for non-joinder of necessary parties. Further, Mr. Mohapatra relying upon the decision in the case of Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another submitted that where it is admitted by the plaintiffs that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. Hence, he submitted that burden of proof heavily lies on the plaintiffs to prove that the suit properties are still joint. On the other hand, Mr. U.C. Panda, learned counsel for the plaintiffs/respondents submitted that the defendants 5 to 7 (present appellants) cannot blow hot and cold at the same time. It is the specific case of defendants 5 to 7 that there was a partition of the property of late Parasu 70 years back and the land in village Jamgaon fell to the share of Daman. He further submitted that during the life time of late Parasu, (the common ancestor), Daman had separated himself from the joint family by taking share in village Jamgaon. Since then, he was, and after his death, his legal heirs are dealing with the properties at village Jamgaon independently and the rest of the family members including defendants 5 and 7 have not raised any objection to the same at any point of time. Moreover, partial partition of the joint family is permissible under Hindu Mitakhara School of Law. When Daman has separated from the joint family since long, neither he nor his legal heirs are necessary or proper parties to the suit. 8. Admittedly, Daman, the eldest son of Parasu, had separated himself from the joint family by taking his share in village Jamgaon. It is also not disputed that Daman and his legal heirs are dealing with properties at village Jamgaon independently. The only question may arise whether a partial partition in the joint family is permissible under law. The answer would be obviously in the affirmative. Law is no more res integra to the effect that a partial partition in the Hindu joint family is permissible under law. The only question may arise whether a partial partition in the joint family is permissible under law. The answer would be obviously in the affirmative. Law is no more res integra to the effect that a partial partition in the Hindu joint family is permissible under law. In a decision in the case of Apoorva Shantilal Shah, HUF Vs. Commissioner of Income Tax, Gujarat-I, Ahmedabad the Hon'ble Supreme Court held that a partition of the properties brought about by the father between himself and his minor son cannot be held to be invalid in Hindu law and it must be held to be valid and binding. The right of the father to effect a partial partition of the joint family properties between himself and his minor son whether in exercise of his superior right as father or in exercise of his right as partia potestas has necessarily to be exercised bona fide by the father and is subject to the right of the sons to challenge the partition, if the partition is not fair and just. 9. In the case at hand, defendants 5 and 7 have never challenged the partition and allotment of share to Daman at village Jamgaon at any point of time and hence the same is binding on them. In a recent decision in the case of Dhapibai and Another Vs. Tejubai and Others it was held that a partition may be partial either in respect of property or in respect of the person making it. It is open to the members of joint family to make a division and severance of interest in respect of part of the joint estate. Hence, it can be safely concluded that after being separated from the joint family by virtue of a partial partition, as aforesaid, neither Daman nor his legal heirs can claim any right over the suit properties. Thus, they are neither necessary nor proper parties to the suit. To analyze the contention of Mr. Mohapatra that burden of proof on the plaintiffs to establish that the properties at Gandabahal are still joint, it would be profitable to analyze the contention after reading paragraph-22 of the decision in the case of Addagada Raghavamma and Anr. (supra), which is reproduced hereunder:-- "22. Some argument is made on the question of burden of proof in the context of separation in a family. (supra), which is reproduced hereunder:-- "22. Some argument is made on the question of burden of proof in the context of separation in a family. The legal position is now very well settled. This Court in Bhagwati Prasad Sah and Others Vs. Dulhin Rameshwari Kuer and Another stated the law thus: "The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief." Whether there is a partition in a Hindu joint family is, therefore, a question of fact; notwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share; but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. On the evidence adduced in this case, both the Courts below found that there was no partition between Chimpirayya and Pitchayya as alleged by the appellant. The finding is one of fact. We have broadly considered the evidence only for the purpose of ascertaining whether the said concurrent finding of fact is supported by evidence or whether it is in any way vitiated by errors of law. We find that there is ample evidence for the finding and it is not vitiated by any error of law." Learned Trial Court while answering issue Nos. We find that there is ample evidence for the finding and it is not vitiated by any error of law." Learned Trial Court while answering issue Nos. 2 and 3 has vividly discussed the evidence of the parties and analyzed the same in its proper perspective. I find no reason to differ with the same. Added to it, Ext. 2 stands jointly and the DW-1 in his evidence has deposed in unambiguous terms that he was paying rent in respect of the entire properties at Gandabahal. Thus, it can be safely concluded that the properties of Gandabhal was joint. 10. Mr. Mohapatra further contended that one Jagabandhu, the youngest son of Chaitan, had filed Title Suit No. 39/63 of 1968-73 for partition, which was dismissed on 22.10.1973. Thus, the present suit is hit by principles of res judicata. He submitted that the learned trial Court though framed an issue to that effect has not given any finding on the same. Mr. Panda refuting such contention submitted that the learned Civil Judge has discussed the question of res judicata while answering Issue No. 6. On perusal of Ext. D, the certified copy of the order passed in T.S. No. 39/63 of 1968-73, it appears that the aforesaid suit was dismissed for default. Order 9 Rule 9, CPC bars the plaintiff to bring a fresh suit on the self-same cause of action, if a suit is dismissed for default. Thus, it is to be examined as to whether dismissal of the aforesaid suit would preclude the plaintiffs to bring a fresh suit. In order to satisfy the bar imposed under Order 9 Rule 9 C.P.C. to bring a fresh suit, it is to be established that the earlier suit was filed by the parties who bring the subsequent suit. Secondly, the subsequent suit arises out of self-same cause of action. In the instant case, though defendants 5 to 7 (appellants herein) in order to substantiate their plea that the suit is hit by principles of res judicata produced the order passed in TS No. 39-63/1968-73 (Ext. D), but there is no material to come to a definite conclusion that the said suit was in respect of the properties involved in the present suit. In absence of such materials, it would not be proper to hold that the plaintiffs are precluded from bringing the present suit for partition. D), but there is no material to come to a definite conclusion that the said suit was in respect of the properties involved in the present suit. In absence of such materials, it would not be proper to hold that the plaintiffs are precluded from bringing the present suit for partition. Moreover, Section-11 of CPC has no application to the case in hand as the earlier suit was dismissed for default. 11. Mr. Mohapatra submitted that after death of the common ancestor, Parasu, the properties left by him devolved upon his five sons and succession opened on the death of common ancestor, namely, Parasu. Parasu having died prior to commencement of Hindu Succession Act, 1956, the successor, Mathura, the daughter of late Chaitan cannot claim any right over the same. Mr. Mohapatra, further contended that the learned Court below did not consider the effect of commencement of Hindu Succession Act, 1956, which is a vital issue to be adjudicated in the suit. On the other hand, Mr. Panda refuted such contention submitting that the effect of commencement of Hindu Succession Act is a question of law and the same can be adjudicated in this appeal on the basis of the materials available on record. Mathura along with other co-sharers succeeded to the properties devolved upon late Chaitan on his death. In order to exclude the plaintiffs from getting the benefit under the Hindu Succession Act, defendants 5 to 7 had opportunity to prove that Chaitan died prior to 1956 and there was a complete partition by metes and bounds between the legal heirs of said Chaitan prior to 1956. Apparently, there is no evidence on record with regard to the date of death of Chaitan, more particularly, as to whether it is prior to 1956. Moreover, it is not the case of defendants 5 to 7 that there was a complete partition between the legal heirs of said Chaitan prior to 1956. In view of the above, it is very difficult to accept the contention of Mr. Mohapatra to come to a conclusion that the plaintiffs had no right to claim for partition. 12. Mr. Mohapatra further contended that the plaintiffs being either son's daughter or son's daughter's son or son's daughter's daughter cannot claim a march over defendant Nos. 5 to 7 who by birth have right over the suit property. Mohapatra to come to a conclusion that the plaintiffs had no right to claim for partition. 12. Mr. Mohapatra further contended that the plaintiffs being either son's daughter or son's daughter's son or son's daughter's daughter cannot claim a march over defendant Nos. 5 to 7 who by birth have right over the suit property. Thus, he submitted that Gharjugi being granddaughter of Parasu could not have brought the suit for partition, as women were not entitled to bring any suit for partition before commencement of Hindu Succession Act, 1956. As discussed earlier, the suit land belongs to Hindu joint family and Daman, the eldest son, has already been separated since long. Thus, on the death of Parasu, his share in the suit property devolved upon his four sons except Daman. Gharjugi being the daughter of Pandab is entitled to succeed to the share of Pranab after his death even though he might have died prior to commencement of Hindu Succession Act, 1956. Likewise, other plaintiffs are also entitled to succeed to the share of properties in the Hindu joint family of their respective branches. Mr. Mohapatra does not dispute that the plaintiffs are Class 1 heirs. Thus, there remains no element of doubt that the plaintiffs can maintain a suit for partition and they are entitled to specific share in the suit property. Mr. Mohapatra questioned the correctness of the answer to Issue No. 4 in the impugned judgment, contending that the finding of learned Trial Court that defendant No. 10 was not a bona fide purchaser is not correct and for that reason, the impugned judgment should be set aside. Mr. Panda, learned counsel for the plaintiffs/respondents, on the other hand, submits that defendant No. 10 against whom the finding is given in Issue No. 4, has not come up in appeal and has not filed any cross-appeal/objection to the present appeal. Thus, the defendants 5 to 7 (appellants herein) have no locus standi who challenge such finding. He further submitted that the learned Trial Court taking note of the sale made by defendant Nos. Thus, the defendants 5 to 7 (appellants herein) have no locus standi who challenge such finding. He further submitted that the learned Trial Court taking note of the sale made by defendant Nos. 5 to 7 has categorically observed that it would be very harsh and injustice to defendant No. 10 to dispossess him from the said land at the time of partition among the plaintiffs and his other co-sharers and the plaintiffs have clearly agreed for adjustment of the said land to the shares of defendants 5 to 7. Thus, while answering Issue Nos. 4 and 5, learned Trial Court in clear terms has observed that the land sold to defendant No. 10 are to be allotted to the share of defendant Nos. 5 to 7 at the time of partition by metes and bounds at the spot. Thus, taking into consideration the rival contentions of the learned counsel for the parties, I feel that the appellants cannot have any grievance to the fining on Issue Nos. 4 and 5. Hence, I find no force in the submissions of Mr. Mohapatra, learned counsel for the appellants on this score. 13. Admittedly, Daman, the eldest son of Parasu, has separated himself by taking his share in the joint family property at village Jamgaon, which is permissible in law. So far as properties in Gandabahal village are concerned, Exts. 1 and 2 make it clear that those properties were recorded jointly in the names of branches of other four sons of Parasu. DW-1, who is none other than the defendant No. 5, has deposed that he was paying rent in respect of the entire land of Gandabahal, i.e., the suit land. It is also admitted case of the parties that the members of the joint family are in enjoyment of separate partition of the suit land for their convenience. The dispute arose, when a portion of the suit land, i.e., from plot Nos. 96 and 97 was sold by defendant Nos. 5 to 7 to defendant No. 10, without taking consent of the other co-sharers, gives a clear picture that the suit land was not partitioned by metes and bounds. Moreover, the appellants do not dispute the allotment of shares of the parties made by the learned Trial Court. In view of the above, I find no reason to interfere with the impugned judgment and decree. Moreover, the appellants do not dispute the allotment of shares of the parties made by the learned Trial Court. In view of the above, I find no reason to interfere with the impugned judgment and decree. Thus, the appeal being devoid of any merit is accordingly dismissed. Parties are directed to bear their own cost. Final Result : Dismissed