JUDGMENT

Ram Prasanna Sharma, J. - This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 19-9- 2001passed by 2nd Additional District Judge, Mahasamund (CG) in Civil Suit No. 6-A/99 wherein the said court decreed the suit in favour of respondent No.2 namely Amarjeet Singh and against the appellant for declaration of title and delivery of possession regarding suit house No.15/20 situated at Ward No.15 at village Pithora, Patwari Halka No.22,Tahsil and District Mahasamund.

2. The property in question is a house as mentioned above. As per the suit filed by the original respondents No. 1 to 4, the property is owned by their father namely Sahib Singh who died on 28-8-1987 and thereafter his wife also died on 29-8-1992 leaving behind three sons namely Ajinder Singh, Amarjeet Singh and Mahindra Singh and two daughters namely Pritam Kaur and Gurmeet Kaur. The property is not partitioned and all the five legal representatives are entitled for their share. Respondent No.5/defendant No.2 who was one of the sons of Sahib Singh executed a sale deed in favour of the appellant on 25-6-1995. As the property was not partitioned, said Mahendra Singh had only limited undivided share, therefore, he was not sole owner of the property and property could not be alienated by him. The trial court after recording evidence of both sides and after hearing the parties recorded finding that as per partition, the property was allotted in the share of respondent Amarjeet Singh, therefore, he is entitled to recover the possession of property from the appellant.

3. Learned counsel for the appellant submits as under.

i) The house is originally owned by Sahib Singh and in the year 1958 there was family partition and the property in question fall into share of respondent No.5 and he executed the sale deed in favour of appellant, therefore, finding of the trial court is against factual matrix of the case.

ii) Respondents No. 1 to 4 have not filed any suit for cancellation of the sale deed and without cancelling the sale deed, the order of delivery of possession by the trial court is not liable to be sustained.

iii) The trial court has not evaluated the evidence in its true perspective, therefore, same is liable to be set aside.

4. On the other hand, learned counsel appearing for the respondents No. 1 to 4 would submit that the house in question is solely owned by Sahib Singh during his life time and the property in question is never partitioned, therefore, right opened only on the date of passing of Sahib Singh and all his legal representatives are joint owners of the property which is still undivided. Respondent No.5 was not sole owner of the property, therefore, he had no right to sell the entire house and respondents No.,1 to 4 are not party to any sale deed executed by respondent No.4, therefore, they are not required to go for cancellation of any sale deed executed by respondent No.5. Respondent No.5 was not owner of the property, therefore, no better title can be passed to purchaser and purchaser is also not the owner of the property. There is noting on record to show that the property was earlier partitioned, therefore finding recorded by the trial court is liable to be modified and respondents No. 1 to 4 are entitled for possession from the appellant.

5. I have heard learned counsel for the parties and perused the record of court below including the judgment and decree.

6. The first question for consideration of this court is whether the house in question was ever subjected to partition as alleged by respondent No.5/appellant. Respondents No. 1 to 4 adduced evidence of Ajinder Singh (PW/1). Appellant side adduced evidence of Mazid Khan (DW/1) and Mahendra Pal Singh (DW/2). The evidence of Ajinder Singh (PW/1) and documents Ex.P/1 to P/2 go to show that the house was recorded in the name of Sahib Singh upto year 1995-1996 and he was the sole owner of the house in question. As per version of the app