1. - This second appeal under Section 100 of the Code of Civil Procedure , on behalf of defendant no.1- appellant - Kamruddin, is directed against the judgment and decree dated 6th of November, 1981, passed by the Additional District Judge No. 2, Jaipur City, Jaipur, in Civil Appeal No.62 of 1977, Biharilal v. Kamruddin & Another , whereby the appeal filed by plaintiff Biharilal was allowed and the suit of the plaintiff for possession of the disputed property was decreed, by setting aside the judgment and decree dated 22nd of March, 1976, of the lower court whereby the lower court dismissed the civil suit of the plaintiff-respondent no.1 for possession and mesne profits.

2. This court, while admitting the second appeal on 5.1.1982, formulated the following substantial questions of law:-

"1. Whether a suit for possession only can lie without a prayer for cancellation of the sale deed made in favour of the appellant?

2. Whether the suit for possession can be filed until the decree for partition attains the finality and the disputed share is allotted to the transferor of the plaintiff?

3. Whether the suit is barred on the ground of non-joinder of the necessary party?

4. Whether the suit suffers from multifariousness of cause of action and the parties?

5. Whether the sale in favour of the appellant was made with prior approval and acquiescence of Laxmansingh and therefore, he is estopped from challenging this sale?

6. Whether the eldest brother as Karta was empowered to sell the property?

7. Whether the Rule of Primogeniture is not applicable in the present case?

8. Whether the sale made prior to the passing of preliminary decree are void?

9. Whether the principles of estoppel are applicable against the plaintiff?"
Brief facts giving rise to this second appeal are that plaintiff-respondent Biharilal filed a civil suit for possession against defendant no.1-appellant Kamruddin as well as defendant no.2-respondent Smt. Kamla Devi in respect of the property, in dispute. The description of the property, in dispute, was mentioned in sub-paras 'ka' and 'kha' of para 4 of the plaint. Sub-para 'ka' relates to the property sold to the defendant no.2-respondent Smt. Kamla Devi, whereas the property i.e. small piece of land, which was sold to defendant no.1-appellant, has been described in sub-para 'kha' of para 4 of the plaint, measuring 10 feet 6 inch towards east and west and 4 feet towards south and north, and numbered as 12. The plaintiff, in its plaint, pleaded that there is one 'haveli' known as 'haveli chandroli' belonging to Raja Sher Singh. After the death of Raja Sher Singh, his four sons, namely, Kalyan Singh, Laxman Singh, Pratap Singh and Amar Singh, became joint owner of the said property. One of the brothers Amar Singh filed a suit for partition against remaining three brothers on 28th of August, 1963 in which a preliminary decree of partition was passed on 11th of September, 1967, declaring 1/4th share of each brother in the said 'haveli'. The final decree in the suit was passed on 5th of November, 1971. It was also pleaded that the eldest brother Kalyan Singh, without any consent of remaining brothers, sold the property, described in para 4 ka', to defendant no.2-respondent Smt. Kamla Devi, and the property described in para 4 kha' of the plaint had been sold to defendant no.1-appellant in the year 1965 and the defendant no.1-appellant put tin-shed on the same and gave the shape of shop. It was further pleaded that after passing the final decree in the partition suit, the property in dispute, came in the share of Laxman Singh, who sold the same to the plaintiff-respondent Biharilal through sale-deed dated 21st of September, 1972, for a sum of Rs.7000/- and the sale-deed was got registered, therefore, the plaintiff has become the owner of the said property and he is entitled to get a decree of possession in his favour and against the defendants no.1 and 2.

3. The defendants no.1 and 2, both, filed their separate written stateme