JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

1. Heard Mr. R. Sarma, learned counsel representing the appellant as well as Mr. N.K. Kalita, learned counsel appearing for the respondents.

2. This is a Regular Second Appeal under Section 100 of the Code of Civil Procedure (CPC) whereby the judgment dated 16.12.2009 and the decree dated 28.01.2010 passed by the court of learned Civil Judge, Nalbari in Title Appeal No. 11/2009, arising out of the judgment and decree dated 05.09.2009 passed by the court of learned Munsiff No. 1, Nalbari in Title Suit No. 02/2006, is under challenge.

3. The present second appeal was admitted for hearing upon the following two substantial questions of law:

(1) Whether in absence of pleadings and prayer for partition, the learned lower appellate court can pass preliminary decree for partition?

(2) Whether on the basis of compromise petition filed before the learned trial court which ultimately was not acted upon by the parties, the learned lower appellate court can direct rectification of the sale-deed no. 470/888 without recording a finding that due intention of the parties to the instrument had not been reflected in the sale deed in question?

4. On 25.03.1998, Shri Khagen