JUDGMENT

Manindra Mohan Shrivastava, J. - This appeal is directed against judgment and decree dated 25.02.2003 passed by the Additional District Judge, Mungeli in Civil Appeal No.22-A/2000whereby the learned Lower Appellate Court modified the judgment and decree dated 11.08.2000 passed by Civil Judge, Class-I, Mungeli in Civil Suit No. 38-A/96.

2. This appeal was admitted on following substantial question of law -"Whether the first appellate Court committed an error of law by passing a decree and directing that the land purchased by the plaintiff be allotted to the share of Bhajiharin Bai after completing the partition from the revenue Court?"

3. Plaintiff-Kamla Bai filed a suit seeking declaration of title, partition and permanent injunction on the pleadings inter alia that vide registered sale deed dated 29.04.1995, she had purchased property in dispute described in Schedule-B from Dev Kunwar/defendant No.3 comprising of land admeasuring 0.85 acres situated in Khasra No. 490 of Village - Chandli, Tahsil - Lormi, District - Bilaspur. Plaintiffs case was that after having purchased share of Deo Kunwar, plaintiff became entitled to the share in the family property to the extent of share of Deo Kunwar. Later on, when the defendants started raising dispute, an occasion arose for the plaintiff to file suit. The plaintiff prayed for a declaration that the plaintiff is entitled to l/4th share of the property as also declaration of his title in respect of 0.85 acres of land comprised in Khasra No. 490 by virtue of sale deed dated 27.04.1995 and also for consequential relief of permanent injunction. The defendants filed their separate written statement. Defendants No.l and 2, namely Jugri Bai and Tulsi Bai, came out with the pleading that name of Deo Kunwar was recorded as benami purchaser. Nema had a joint family and the property described in Schedule A belong only to Nema and his wife Deo Kunwar whereas the property described in Schedule B was joint Hindu family property. It was further pleaded that on the disputed land, all the joint holders of the family had their share and partition of land described in Schedule A and B has not taken place. Therefore, Deo Kunwar did not have the right to sell any particular part of the joint family property as there was no partition. Defendants No.3 and 4, namely Deo Kunwar, the vendor and Bhajiharin Bai pleaded that the property is self acquired property of defendant No.3. It was this self acquired property which was sold by Deo Kunwar in favour of the plaintiff and the plaintiff was also given possession and other defendants have never cultivated the land. Defendants No.3 and 4 fully supported the case of the plaintiff.

4. The learned Trial Court framed as many as four issues. Vide judgment and decree dated 11.08.2000, the Trial Court decreed the suit of the plaintiff in the manner that the plaintiff, by virtue of sale of undivided share of Deo Kunwar in her favour vide registered sale deed dated 29/04/1995, is entitled to share in the undivided properties described in Schedule A and B to which, Deo Kunwar would be entitled. Plaintiff challenged judgment and decree before the lower Appellate Court by filing an appeal. Though learned Lower Appellate Court also affirmed finding to the extent that plaintiff - Kamla Bai purchased undivided share because by the time, sale deed was executed on 29.04.1995, no partition had taken place, it modified the judgment and decree of the Trial Court in the manner that upon partition, the land in dispute shall be allotted to the share of Bhajiharin Bai.

5. Learned counsel for the appellants would argue that once both the Courts below have recorded concurrent findings that what was purchased by Kamla Bai was the undivided share of Deo Kunwar because by the time, sale deed was executed, partition had not taken place, the plaintiff is only entitled to partition by virtue of she having acquired undivided interest of Deo Kunwar in the joint family property. Learned lo