Soumen Sen, J.

1. This appeal is directed against the judgment and order dated September 7, 2005 dismissing O.C. Suit No. 75 of 1998.

2. The appeal was admitted on July 25, 2011. The earlier Division Bench (consisting one of us Justice Soumen Sen) while admitting the appeal remanded the matter to the Civil Judge (Senior Division), Darjeeling for deciding issues nos.5 and 6 afresh in view of a finding arrived at by the Division Bench that the trial Judge could not have made out a third case based on a family arrangement and, accordingly, findings arrived at by the trial Judge in respect of Issues Nos.5 and 6 were set aside.

3. The learned Civil Judge (Senior Division), Darjeeling in deciding issue Nos.5 and 6 held that the Partition Deed (Exhibit 7) is in effect a deed of family settlement. It was further held that the substituted plaintiff also could not produce the Will allegedly executed by the original plaintiff on 28th May, 1991 and so long as the alleged Will in favour of the substituted plaintiff is not probated or letters of administration obtained in respect thereof the sale deed under consideration in relation to the suit property would be valid.

4. During the pendency of the appeal, the substituted plaintiffs obtained the probate. Accordingly, the suit was remanded to the Civil Judge (Senior Division) for a decision on issue Nos.5 and 6 after taking into consideration the grant of probate and the observation made by this Court that it was not open for the Civil Judge (Senior Division) to make out a case of family arrangement which was not the case of either of the parties.

The said Issues Nos.5 and 6 are mentioned herein-below:-

"5. Is the Sale Deed executed by the defendant no.1 in favour of the defendant no.2 void?

6. Is the name of the defendant no.1 in the partition deed dated 20.04.1985 inserted out of courtesy and is not the defendant no.1 entitled to the suit property."

5. Thereafter on remand a judgment and decree was passed on October 14, 2011 in which the said issues were decided and answered in favour of the plaintiff.

6. Shorn of details, one Mrs. Nyima Lhamo, widow of late M.L. Tempa filed a suit against Smt. Rinchen Chapkhanwala and others in the Court of Civil Judge, (Senior Division) at Darjeeling, the plaintiff is the absolute owner of the schedule property and a decree for declaration of the alleged Sale Deed being Deed No.3212p dated 11th September, 1998 executed by the defendant No.1 in favour of the defendant No.2 as void, ab initio.

7. One Phu Doma and her brother Kami Tsahering since deceased jointly purchased Government lease-hold lands together with all structures standing thereon at that time known as Chapelton being Municipal Holding No.12, Robertson Road and subsequently numbered as 15, Robertson Road from Mrs. Margaret Walesh and others by a Deed of Conveyance dated 28th October, 1946.

8. Phu Doma and Kami Tshering sold some properties to some persons jointly at different times till 1983. Since Kami Tshering and Phu Doma were facing difficulties in enjoyment of the said property jointly, they decided to make partition of their respective shares in the property by a registered Deed of Partition dated 20th April, 1985. The said Kami Tshering and the said Phu Doma partitioned their respective shares in the property amicably. Under the said partition deed, a portion of the dwelling house being Premises No.15, Robertson Road was allotted to said Phu Doma exclusively. The said share of the said Phu Doma has been categorically mentioned in the Schedule B of the Partition Deed dated 20th April, 1985. The defendant No.1 is the daughter of the said Phu Doma. Phu Doma prior to her death on 7th January, 1988 executed a Will whereby all the moveable and immoveable properties including the suit schedule property was given to the plaintiff. Phu Doma died on 13th July, 1988. The original plaintiff executed a Will on 28th May, 1991 in respect of her moveable and immoveable properties and her nephews and ni