1. This second appeal under section 100 CPC has been filed against the judgment and decree dated 25.7.2001 passed by the First Additional District Judge, Morena in Civil Appeal No. 3A/2001, thereby dismissing the appeal filed by the appellants against the judgment and decree dated 22.12.2000 passed by the Civil Judge, Class I, Jaura, District Morena in Civil Suit No. 24A/1995.

2. The appeal has been admitted on the following substantial questions of law:

“1. Whether the impugned judgment is bad in law due to the conflicting findings as regards existence of joint property in paragraph 11 of the impugned judgment and as regards the family settlement in paragraph 14 thereof?

2. Whether the Court below is unjustified in upholding alienation of a specific part of the undivided property by one of the co-sharers?

3. The necessary facts for disposal of the present appeal in short are that the appellants/plaintiffs have filed a civil suit for declaration of title and permanent injunction pleading inter alia that survey No. 707 area 1 bigha 6 viswa, survey No. 165 area 1 bigha 12 Viswa situated in village Jaura, District Morena (shall be referred to as “disputed land”) is the joint property. No partition has taken place and the plaintiffs and defendants are jointly cultivating the land and are taking crops. It was further pleaded that defendant No. 1 has executed a sale deed in favour of defendant No. 2 on 16.3.1995 in respect of the land admeasuring 15x50 sq. ft. forming part of survey No. 165 area 1 bigha 12 viswa. It was pleaded that the said sale deed is a sham document and since the partition has not taken place, therefore, defendant No. 1 had no right or title to sell the specific piece of land out of the joint property. It was further pleaded that during pendency of the suit, defendant No. 2 has executed another sale deed in favour of defendant No. 3 on 21.8.1997 and the defendant No. 3 on the strength of the said sale deed is trying to get his name mutated and is also trying to take possession of the same. Since the defendant No. 1 was never in the exclusive possession of the land in dispute, therefore, the sale deed executed by defendant No. 1 is null and void. It was further pleaded that defendant No. 1 is trying to sell other pieces of lands also and thus, it was prayed that the defendant No. 1 may be restrained from alienating the property without getting it partitioned. The defendants No. 1 and 2 filed their written statement and pleaded that surveys No. 165 and 707 are not the joint property and it was never in joint possession, but in fact this is an Abadi and the plaintiffs and defendants are in separate possession of the same and are using the same separately. The partition had taken place in Samvat 2049 and defendant No. 1 is in possession of the land which had fallen to his share and he had sold 15x50 sq. ft. of land out of his share by sale deed dated 16.3.1995 executed in favour of defendant No. 2. Since the defendant No. 2 is in sole possession of the land in dispute, therefore, he is fully competent to sell the same. The defendant No. 3 also filed his separate written statement and pleaded that mutual partition had already taken place between the plaintiffs and defendant No. 1 in Samvat 2049 and thereafter, the plaintiffs/appellants have no right or title in the land in dispute. Defendant No. 3 has purchased the land in dispute from defendant No. 2 by registered sale deed dated 21.8.1997 after making payment of entire consideration amount and he has also been placed in possession.

4. The trial Court, on the basis of the pleadings of the parties, framed issues and after recording the evidence and hearing both the parties, came to a conclusion that the property in dispute is still joint in nature and partition has not taken place. However, has held that since the defendant No. 1 has sold his share, therefore, the sale deed cannot be declared as null and void, but placed the burden on the plaintiffs to seek p