R.K.MERATHIA,J. - (1.) This second appeal has been filed against the judgment and decree dated 26.7.1999 passed by learned IInd Additional Judicial Commissioner, Khunti in Title Appeal No. 89 of 1996 dismissing the appeal filed by the appellant, and also the judgment and decree dated 17.10.1996 passed by learned Munsif, Khunti, Ranchi in Partition Suit No. 4 of 1987.
(2.) ON 27.4.2001, the following substantial question of law was formulated: - "Whether in absence of any finding that Exhibit 1 was invalid and was not acted upon, plaintiff could have been denied her claim for partition in the suit property?  Mr. V. K. Prasad, learned counsel appearing for the plaintiff -appellant argued on the said question of law. He submitted that it was admitted case of the parties that Tileshwari Devi (Defendant No. 21) had 1/4th share in Schedule A and B property and, therefore, the appellant being purchaser from Tileshwari Devi was entitled to maintain the suit for partition against the other co -sharers. The appellant was claiming partition on the basis of the sale deed dated 26.3.1981 (Exhibit 1), therefore, in the absence of any findings that Exhibit 1 was invalid and was not acted upon; the plaintiff could not have been denied her claim for partition. He further contended that the sale deed dated 23.6.1981 (Exhibit D) executed by Tileshwari Devi in favour of some of the contesting defendants, proved that Tileshwari Devi was competent to sell lands out of her 1/4th share. It is further contended that Exhibit 1 was executed by Tileshwari Devi in favour of the appellant at a prior date, and therefore, in view of Section 48 of the Transfer of Property Act, it was not necessary for the appellant to challenge Exhibit D executed by her in favour of the contesting defendants -respondents. Therefore the trial court wrongly held that in the present suit for partition it cannot be decided as to which of the sale deed Exhibit 1 or Exhibit D was legally valid and acted upon, unless the aggrieved party (s) brings suit challenging one or the other sale deed.
(3.) ON the other hand Mr. R. R. Tiwary, learned counsel appearing for the contesting defendants -respondents supported the judgments under appeal. He submitted that no such question of law arises in this second appeal at all. He further submitted that Tileshwari Devi was the original plaintiff no. 1 and the appellant was plaintiff no. 2. Tileshwari Devi got herself transposed as defendant no. 21 on her request, during pendency of the suit, leaving the appellant as the sole plaintiff. Then Tileshwari Devi filed her written statement denying and disputing the claim of the appellant based on the sale deed (Exhibit 1) that she never executed sale deed in favour of the appellant, rather the same was got executed by the appellant and her husband by practicing fraud, as she was given to understand that she was executing only a mortgage deed. She affirmed the sale made in favour of the contesting defendants. In such position, it was absolutely necessary for the appellant to amend her plaint if she wanted to make out a case of partition of her share on the basis of Exhibit 1 by clearly stating and proving that she derived title by Exhibit 1 and it was acted upon. He further submitted that for this reason the trial court had to say that it was not possible to decide the validity of Exhibit 1 in the present suit in the absence of necessary pleadings and evidences from the side of the appellant. He also submitted that the lower appellate court has gone to the extent that issue no. ix i.e., whether Exhibit 1 was legal, genuine and binding on the defendants; should not have been framed at all by the trial court in the absence of pleadings and evidences. He further submitted that it is pertinent to note that defendant no. 1 Sitanath Mahto is husband of the appellant.;