JUDGMENT :

In this appeal, the appellants have called in question the judgment and decree passed by the learned 2nd Addl. District Judge, Cuttack in Title Appeal No. 20 1989 confirming the judgment and decree passed by the learned Subordinate Judge, Cuttack (as it was then) Title Suit No. 193/300 of 1983/87.

The appellant as the plaintiff had filed the suit for partition of the suit schedule properties per share noting in the C.S. record of right specifically claiming under section 4 of the Partition Act the relief as regards the properties purchased by the respondent no. 3 (defendant no. 4) by Kabala (sale deeds) dated 06.03.1962 and 24.07.1965 with the declaration that the sale-deed dated 04.05.1968 executed in favour of the respondent no. 1 (defendant no. 1) and consequently the sale-deed dated 27.05.1980 executed by said respondent no. 1 (defendant no. 1) in favour of respondent no. 2(defendant no. 3) as inoperative. The appellants (plaintiffs) had also prayed for relief of permanent injunction against respondent no. 2 (defendant no. 3).

The suit having been dismissed, they filed an appeal under section 96 of the Code of Civil Procedure. There the result of the dismissal of the suit having been confirmed now the move is before this Court by filing the second appeal under section 100 of the Code.

2. For the sake of convenience as also to avoid confusion and bring in clarity, the parties hereinafter have been described as per their position and as arraigned in the trial court.

3. The inter se relationship between the parties as described in the plaint in schedule A with later amendment runs as follows:-

Panchanana
Mahi				Mahi Sahadeb
Radhanath = Taramani	Bhagaban			Late Fakir	Late Panu = Rama
	=Udia (P-3)				Late Balaram	Late Upendra = Suka (D.2)
	Prafulla (P-1)	Pitambar (P-2)	Rajani (P-4)			Kanchana (D.1)

* (Supplied by this Court on going through the pleadings)

It is stated that the properties under sabik plot no. 3278Ac. 0.04 decimals; plot no. 3276-Ac. 0.02 decimals and plot no. 3275-Ac.0.04 decimals totaling to Ac. 0.38 decimals described in schedule – B of the plaint are the joint family homestead land of the parties over which the joint family dwelling house stands and those lie in a compact block. In the record of right of the year 1930-31 it stood recorded as such with the share, noting of the recorded tenants namely Radhanath and Bhagaban having 8 annas, and 8 pahis of share and Fakir as well as Panu having 7 annas 4 pahis. The allegation is that on 06.03.1962, Rama widow of Panu, Balaram and Suka, the original defendant no. 2 (since dead) sold the undivided share of land out of plot no. 3275 and 3278 to the extent of Ac. 0.04 decimals and Ac. 08 decimals totaling Ac. 0.12 decimals to defendant no. 4 by registered sale-deed, Ext. 8 and then again Balaram, Suka, the original defendant no. 2 sold Ac. 0.02. 11/2 kadis of land from plot no. 3278 to that defendant no. 4 on 24.07.1965 by registered sale-deed under Ext. 9. Thus, it is stated that the branch of Panu out of their interest of 7 annas 4 pahis have sold Ac. 0.14.11/2 kadis as against their entitlement standing at Ac. 0.17.4 kadis, thus being left with Ac. 0.03.31/2 kadis. During these transactions, the plaintiffs claim to be the minors under the care of custody of the mother guardian who being a pardanashine lady was then also old. Thus, they were not aware of the transactions and that was also the situation during the hal settlement operation. It is stated that Balaram and Suka on 04.05.1968 again sold 5 kadis of land from out from plot no. 3276 and Ac. 09.31/2 kadis of land from plot no. 3278 to defendant no. 1 by registered sale-deed under Ext. 10. Thus, they sold their undivided interest in the joint family that too in excess of their