JUDGMENT :

Sanjay K. Agrawal, J.

1. The substantial questions of law involved, formulated and to be answered in the second appeal preferred by defendants No. 1 to 6 are as under:-

"1. Whether the suit was maintainable without impleading the necessary party?

2. Whether the suit was maintainable without including the lands purchased in the name of other members of the joint family?

3. Whether the First Appellate Court is justified in holding that the suit land was held by Sunder Lal and it was available for partition?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

2. The suit land was originally held by Sunder Lal. He had three daughters i.e. plaintiff No. 1-Urmila, plaintiff No. 2-Rukhmani and defendant No. 1-Ameera. Defendant No. 2-Ghana Bai is widow of late Sunder Lal and defendants No. 3 to 6 are sons of defendant No. 1-Ameera out of her wedlock with Dashrath. Plaintiffs No. 1 and 2 brought a suit for declaration of title that they have total half share in the suit land as shown in Schedule "A" annexed with the plaint situated at village Rajpur, area 0.68 acre, at village Dharigawa, area 17.88 acres, at village Nawagaon area 12.05 acres, at village Bamhanipara-Nawagaon, area 20 acres and at village Bamhani, area 11.60 acres, total 62.21 acres and further sought relief that sale made in favour of defendants No. 3 to 6 on 19.10.67 relating to 11.60 acres of land alleging that the suit properties were purchased by Sunderlal in the names of defendant No. 1 and defendants No. 3 to 6 benami as the said properties actually belonged to Sunderlal, father of the plaintiffs and prayed for decree of partition and possession.

3. Defendant No. 1 filed her written statement opposing the plaint averments stating inter-alia that the land shown in Schedule "A" mainly 20 acres was settled in her favour by registered sale deed, as such, it is her property and it was not the property held by Sunder Lal, therefore, that property is not available for partition. Likewise, 11.60 acres of land was settled in favour of defendants No. 3 to 6 i.e. sons of defendant No. 1, as such, these properties are not available for partition and it cannot be partitioned and the plaintiffs are not entitled for partition and the suit deserves to be dismissed with costs.

4. Defendants No. 3 to 6 have opposed the plaint averments and have taken the stand in line of defendant No. 1.

5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 8.10.96 dismissed the suit holding that late Sunder Lal, father of the plaintiffs and defendant No. 1 was not owner of 62.21 acres of land and the plaintiffs are not entitled for half share in the suit property and the suit has not been filed in respect to the entire suit property and the suit is also liable to be dismissed on account of non-joinder of necessary party.

6. On appeal being preferred by the plaintiffs, the First Appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit of the plaintiffs.

7. Questioning legality and validity of the judgment and decree passed by the First Appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants No. 1 to 6, in which substantial questions of law have been framed by this Court, which have been set-out in the opening paragraph of this judgment.

8. Mr. Aishwarya Pandey, learned counsel for the appellants/defendants No. 1 to 6, would submit that the First Appellate Court is absolutely unjustified in reversing the well merited and well reasoned judgment and decree of the trial Court, as such, the property situated at village Bamhanipara-Nawagaon (area 20 acres) and Bamhani (area 11.60 acres) are the property of defendant No. 1 and defendants No. 3 to 6 respectively and these properties are not available for partition and it cannot be hel