JUDGMENT:

S.B. SINHA, J.

1. Leave granted.

2. Appellant is aggrieved by and dissatisfied with a judgment and order dated 16th November, 2006 passed by a Division Bench of the Patna High Court in LPA No.1334 of 1997 whereby and whereunder a judgment and order dated 15th September, 1997 passed by a learned Single Judge of the said Court was set aside.

3. Appellant and the father of respondents herein had entered into an agreement to sell a property admeasuring 18 kathas and 5 dhurs of land situate in the District of Begusarai on or about 10th April, 1978. In the said agreement a representation was made by the appellant herein that a partition of the joint family property had taken place and each of four co-sharers had been in possession of separate portions of the property allotted to them.

4. Father of the respondents had paid a sum of Rs.16,000/- out of the total consideration of Rs.25,000/-. They were put in possession of 16 kathas and 5 dhurs of land. The balance amount of Rs.9,000/- together with interest of Rs.4,000/- was to be paid within 4 months from the date of agreement of sale i.e. 10th August, 1978.

5. Admittedly the said agreement was scribed by PW-14, Ram Gulam Pandit;, PW-11, Garib Nath Chaudhary & PW-12, Narayan Singh were witnesses to the said agreement.

6. As despite notice, the appellant failed and/or neglected to execute a sale deed in terms of the said agreement a suit praying for specific performance thereof, which was registered as Title Suit No.79 of 1978, was filed in the Court of the Subordinate Judge, Begusarai.

7. In his written statement, the appellant raised two defences :

a) he was forcibly made to sign blank stamped papers whereon the purported agreement of sale was scribed later on.

b) that the said property was a joint family property. 8. Respondents' father in support of his case examined himself as a witness. The scribe of the agreement as also the witnesses were also examined in the said suit.

9. Appellant also examined 7 witnesses to prove his case. DW-2, Geeta Rai, admitted that the appellant had been in possession of the land in dispute. Even appellant in his deposition before the learned trial Judge, although stated in the examination-in-chief that he and his brothers had not been in separate possession of the land, in the cross-examination stated as under :- "Bhiku Rai is my uncle. He has = share on the south of the said property. My 4 kathas and 19 dhurs is measured with 15 kathas of land on which there is my house. I have = share in that there is no plot of 3 kathas and 6 dhurs. Brajkishore does not have possession over any plot Khasra No.1971 is measuring 1 bigha and 17 dhurs. There is my share as well as share of Bhiku Rai in the south of the said property. There is no plot of 4 kathas. No part in possession of Brajkishsore Rai. I have possession over the land over which there is brick kiln Khasra No.2526 is as measuring 17 kathas. My share is from the east."

10. Appellant, however, failed to explain the stipulation contained in the said agreement that a partition of the joint family property had already taken place. Brothers of the appellant were not examined to prove joint possession. Existence of the coparcenary had not been established. The learned trial court keeping in view the nature of the evidences brought on record, decreed the suit, dis-believing the defence of the appellant that the said agreement was an outcome of a forcible execution. It, however, did not enter into the question in regard to jointness of the property.

11. On an appeal having been preferred therefrom, the appellate court allowed the appeal of the appellant by a judgment and decree dated 15th September, 1997 on the sole ground that the suit property was a joint family property. The first appellate court in its judgment held :-

"11. In his evidence the defendant has explained his alleged admission of private partition in the family in the Mahda in question. According to him his signature and left thumb imp