A coparcener can alienate joint family property with the consent of other coparceners, and the intention of the parties to a sale deed is to be gathered from the recitals in the deed.

S. ACHARYA, J.

( 1 ) THE plaintiff being unsuccessful in both the courts below has preferred this second appeal against the confirming decision of the Subordinate Judge, Aska dismissing the plaintiff's suit for recovery of possession after demolishing the structure standing on the suit land.

( 2 ) THE undisputed facts are that the defendant No. 1, Nilakantha Tripathy (Respondent No. 1 herein) is the father of the defendants 2. 3. 4 (respondents nos. 2. 3 and 4 herein ). The defendant No. 5, Kantamma Patrani (Respondent No. 5 herein) purchased the suit property from Trilochan Tripathy (defendant No. 21 and Kailash Tripathy (defendant No. 3) by a registered sale deed, Ext. A dated 103-1964 from defendant No. 1. The plaintiff, after the aforesaid purchase on 6-1-1964, filed this suit in April 1969 on the allegation that defendant No. 1 after the aforesaid sale under Ext. 1, delivered possession of the suit lands to the plaintiff; that the aforesaid sale (Ext. A) by defendant Nos. 2 and 3 in favour of defendant No. 5 was a fraudulent one and was not with the consent of defendant No. 1, who was the sole owner of the suit land, as the same was his self-acquired property. The defendant No. 5 constructed a structure on the suit land, during the absence of the plaintiff and thus created trouble on the plaintiff's peaceful possession of the suit land. Hence this suit for recovery of possession of the suit land after demolishing the structure constructed thereon by defendant No. 5.

( 3 ) THE defendant No. 1 in his written statement, inter alia, alleged that the sale deed (Exhibit 1) in favour of the plaintiff was a fraudulent one and without consideration and the plaintiff not given delivery of possession of the suit land under Exhibit 1. It was further alleged that defendants 2 and 3 with the consent of defendant No. 1, sold, for consideration, the entire suit property with the house standing thereon and delivered possession of the same to defendant No. 5 in accordance with the said sale. The defendant No. 5 in a separate written statement, inter alia stated that she purchased the entire suit property by a registered sale deed (Exhibit A) from defendants 2 and 3, and in accordance with the said sale she got possession of the said property, and the plaintiff had no manner of right, title and interest over the suit property. On the above averments, they prayed for the dismissal of the suit with costs.

( 4 ) THE trial court dismissed the plaintiff's suit mainly on the findings that the sale deed executed by defendants 2 and 3 in favour of defendant No. 5 (respondent no. 5 herein) is valid and binding on all concerned, and by that defendant No. 5 acquired right, title and interest over the suit property. It also found that by the sale deed ho consideration passed and no delivery of possession was effected in favour of the plaintiff and accordingly the plaintiff did not acquire any title to the suit lands. On the above findings, the plaintiff's suit was dismissed with costs.

( 5 ) THE appellate court confirmed the aforesaid findings of the trial court. Both the courts have found that the suit property was the ancestral joint family property of defendants 1 to 4 and it was not the self-acquired property of the defendant No. 1. The appellate court in confirming the decision of the trial court took note and accepted, on independent consideration of the evidence on record, the trial court's findings to the effect that although the first defendant, the father of defendants 2 to 4, did not execute the aforesaid sale deed, Exhibit A in favour of defendant No. 5, he (defendant No. 1) had given his consent to the said sale, and so the sale was vajid and binding on the first defendant and his heirs, the defendants 2 to 4 and accordingly the first defendant had no further right left in him to transfer the suit land later to any other person; that after execution of the sale deed (Ext. A) in 1960 in favour of the defendant No. 5 possession of the s