S.N.Hussain, J.

1. This first appeal has been filed by the applicant-appellant against the judgment and order dated 17.10.2006 by which Subordinate Judge-1, Patna dismissed Misc. Case No. 25 of 2003 which was filed by the appellant under Order XXI Rule 97 C.P.C. in Execution Case No. 12 of 1995 claiming that the suit land constituted part of the ancestral lands of Mitakshara joint family of which appellant was one of the coparceners alongwith respondent no. 2 and hence respondent no. 2 had no right to alone enter into an agreement for sale of the entire joint family property with respondent no. 1 without the consent of the appellant and accordingly the deed of agreement for sale executed by the respondents was not binding on the appellant who had independent right in the coparcenary but was neither impleaded in Title Suit No. 97 of 1982 nor was made party in F.A. No. 697 of 1985 as well as in Execution Case No. 12 of 1995, which was filed for execution of the decree passed in F.A. No. 697 of 1985.

2. At the time of final hearing of this case, learned counsel for respondent no. 1 raised a preliminary objection that the instant First Appeal was not maintainable as it was aga