Amareshwar Sahay, J. - (1.) HEARD the parties.
(2.) THIS second appeal arises against the judgment of affirmance. The plaintiffs -appellants filed Title (Partition) Suit for preliminary decree for partition of their 1/4 share in the properties given in schedule of the plaint and also for final decree demarcating their shares by metes and bounds. The plaintiffs claimed that the properties in suit were recorded in the name of Kuloda Gorain in the last survey and he died leaving behind four sons namely Braja Gorain, Nakul Gorain, Gokhul Gorain and Bodi Gorain who succeeded the properties. They were in joint possession of the properties inherited by them till their death. The plaintiffs are the heirs of Gokhul Gorain whereas Defendant Nos. 1 and 2 are the heirs of Braja Gorain and Defendant No. 3 is the heir of Nakul Gorain, Defendant No. 4 is the wife of Nakul Gorain and Defendant No. 5 is the widow of Bodi Gorain.
(3.) DEFENDANT Nos. 1 and 2 contested the suit alleging inter alia that the jointness in possession of the properties were severed long back and there was a mutual family partition between Gokhul Gorain, Kalipada Gorain, Khandu Gorain and Champa Bala in which all the properties were divided amongst themselves. During the last survey settlements only four small mud built houses were standing on plot No. 801 and there was no structure over plot No. 800. All the houses standing over plot No. 800 had fallen down. Champa Bala did not take any share in plot Nos. 800, 801 and 786, since she was living at village Bindapathar at her father's house after she became widow. Gokhul Gorain father of the plaintiff relinquished his share over plot Nos. 800 and 801 in favour of defendant Haru Gorain, Taru Gorain and Kali Gorain by way of private family settlement and executed two deeds to that effect. A new house was constructed over plot No. 300 at mauza Kushberia where the plaintiffs -appellants are still living. The defendant Kalipado constructed double storied pucca house and one brick built 'Dochala' house with tiled roof on plot No. 800 and one brick built & one tiled roof 'Dochala' on plot No. 801. Prior to construction of these houses, the parties had partitioned their other properties by metes and bounds.;