JUDGMENT A. B Srivastava, J. 1. This is a second appeal against a decree and Judgment, dated 31-8-1985, of the VIII Additional District Judge. Meerut allowing the appeal of the plaintiff-respondents, setting aside the judgment and decree of the trial court and decreeing the suit for possession and injunction. 2. Suit No. 406 of 1976 was filed by the plaintiff-respondent no. 1 alleging that by means of a family partition evidenced by a partition deed dated 17-8 1939 between Murari Lal (original defendant no. 3), his wife Smt Birma Devi and son Ram Saran Das the plaintiff, the Joint family property was partitioned- The property mentioned in lot in the partition deed went to the share of Murari Lal. lot 2 to the share of Birma Devi and lot 3 to the share of the plaintiff Smt. Birma Devi according to the deed of partition was to have only limited estate to the property in lot 2. Amongst other properties house nos. 10 to 13 and 13 A were allotted In the share of Murari Lal The said Murari Lal sold the aforesaid house nos. 10 to 13 and 13A as described in para 6 of the plaint in favour of the defendants no. I and 2 by registered sale deed dated 21st January, 1966. Adjacent towards west of property no. 13A sold by Murari Lal is situated garden which was allotted to the share of Smt. Birma Devi. In a portion of the garden, adjacent to the well, in the year 1948 the plaintiff had built a stair case, a room and a tin shed. Taking advantage of his influence over Smt. Birma Devi, Murari Lal opened a door, of his premises no. 13A which was a garrage, towards the garden in the year 1952, a notice regarding which was given to him by the plaintiff. Smt. Birma Devi died on 25-2-1976 whereafter the properties in lot 2 reverted to the plaintiff and Murari Lal as full owners. While executing the sale deed dated 21-1-1966 Murari Lal with the connivance of Birma Devi made a wrong description of the boundaries and thus included the stair case, room and tin-shed constructed by the plaintiffs in the property transferred. The consent, if any, of Birma Devi however, did not have any effect on the rights of the plaintiff as she had only a limited estate. The consent, if any, of Birma Devi however, did not have any effect on the rights of the plaintiff as she had only a limited estate. The plaintiff filed suit No. 535 of 1966 before City Munsif, Meerut. The suit, however, was not pursued because the property was to revert back to the plaintiff after the death of Birma Devi and it was dismissed for default on 24-1-1967. The defendants no. 1 and 2. on the strength of the said sale deed filed an ejectment suit in the court of Judge Small Causes stating defendant no. 4 Kaushlya Devi to be a tenant of a room situate in the 'baagicha'. In the said suit the plaintiff applied for being impleaded as a party but the said application was dismissed. After the death of Birma Devi the possession of the defendants no. 1 and 2 over the property in dispute is that of tresspasser and they have no right to remain in possession over the same, to realise its rent or to have egress and ingress into the garden through the intervening doors. Since despite the request and demand of the plaintiffs the defendants 1 and 2 failed to hand over possession of the property in dispute and to refrain from realising rent, the suit was filed for possession and for permanent injunction. The contesting defendants, no. 1 and 2, pleaded that prior to 1939 the plaintiff and his father defendant no. 3 Murari Lal formed a joint family. The partition of the said property took place in the year 1939 dividing the properly in 3 shares, as evidenced by partition deed dated 17-8-1939, amongst the plaintiff, his father Murari Lal and mother Birma Devi. The disputed property shown by red colour in the plaint map came to the share of Murari Lal, defendant no. 3. It was not given in the lot of Birma Devi. Murari Lal who was the owner of the property in suit, transferred the same along with house nos. 10 to 13 and 13A In favour of the defendants no. 1 and 2 by sale deed dated 21-1-1966. The defendants no. 4 and 6 thus became the tenants of the defendants no. 1 and 2 after the aforesaid sale deed and the defendants no. 1 and 2 became entitled to realise rent While the defendant no. 10 to 13 and 13A In favour of the defendants no. 1 and 2 by sale deed dated 21-1-1966. The defendants no. 4 and 6 thus became the tenants of the defendants no. 1 and 2 after the aforesaid sale deed and the defendants no. 1 and 2 became entitled to realise rent While the defendant no. 6 refused to recognise the plaintiff as landlord, the defendant no. 4 colluded with the plaintiff and paid rent to him. A decree for her ejectment, however, has been passed in Suit No. 591 of 1976 by the J.S.C.C. Meerut. Smt. Birma Devi who got 1/3rd share in the Joint Hindu Family property mentioned in lot no. 2 in the partition deed became its absolute owner after passing of the Hindu Succession Act. By means of a will dated 27-9-1968 she disinherited the plaintiff and defendant no. 3 of her property. The construction standing in the disputed land has not been made by the plaintiff, the door connecting premises no. 13A with the 'Baagicha' was in existence even at the time of partition. The plaintiff has no locus standi to bring this suit. 3. The trial court dismissed the suit of the plaintiff with a finding that the property in dispute was allotted to the share of original defendant no. 3 Murari Lal who sold it to the defendants nos. 1 and it by a sale deed dated 21-1-1966. The constructions on the disputed land were not made by the plaintiff, as such there is no question of his being owner thereof This property was not allotted in the share of Smt Birma Devi in the partition. In any case the limited] estate given to her In the properties allotted in the partition matured into absolute right under section 14 (1) of the Hindu Succession Act On appeal being filed by the plaintiff, the first appellate court came to the finding that the disputed property is not part of house no- 13-A and was not allotted in lot no. 1 in the share of Murari Lal rather it was part of Baagicha allotted in the share of Smt. Birma Devi by means of lot no 2 The constructions in the disputed land were not in existence at the time of partition in the year 1939 rather were made subsequently by the plaintiff If further found that Smt. Birma Devi has no existing right in the property prior to the partition in the year 1939. For the first time she got her right in this property by means of the partition deed which allowed her only a life interest in the property allotted in her share the said property devolved upon the plaintiff and Murari Lal after the death of Smt. Birma Devi. Murari Lal executed a will of the property of his share in favour of Smt. Omwati, the wife of the plaintiff and after the death of Omwati the same devolved upon her husband, the plaintiff, and sons and daughters defendant nos. 3/1/1 to 3/1/9 the present suit or the plaintiff is also not barred by order 9 rule 9 CPC on account of dismissal of earlier suit no. 535 of 1966, being based on different cause of action. 4. With these findings the first appellate court allowed the appeal and reversing the decree of the trial court, decreed the plaintiff's suit for possession and injunction. Learned counsel for the parties have been heard and record has been perused. 5. The substantial questions of law raised in this appeal on which it was admitted are. as to whether the partition deed of 1939 by which a specific share was allotted to Smt. Birmal Devi falls within section 14 (1) or is covered by section 14 (2) of the Hindu Succession Act 1956, and whether in view of the fact that the property devolved upon Murari Lal and the plaintiff-respondent in equal share after 1976, the sale deed executed by Murari Lal in favour of the appellants could be set aside even in respect of the share which devolved upon Murari Lal. 6. 6. Taking up first the question relating to applicability or otherwise of section 14 (1) or (2) of the Hindu Succession Act, the contention on behalf of the defendant appellant is that since there was not created or granted for the first time, a right in the property to Smt. Birma Devi by means of the deed of partition, the life estate given to her in the property in lot no 2 in the partition deed, would mature into an absolute right under section 14 (1) of the Hindu Succession Act. The contention on the other hand of the plaintiff respondent is that Smt. Birma Devi had no title or interest in the property subject matter of partition and for the first time she was given a limited right in the property of lot no. 2. Under these circumstances sub clause (2) to section 14 will be applicable and her limited estate would not convert into an absolute right. 7. According to section 14 (1) of the Hindu Succession Act 1956 any property possessed by a female Hindu whether acquired before or after the commencement of the Act shall be held by her as full owner thereof and not as a limited owner. Sub-section (2) thereof which forms an exception to sub-section (1) says that nothing in sub-section (1) [shall apply to any property acquired by way of gift or under a will or any other instruments or under a decree or order of a Civil Court or an award, where the terms of the gift will or other instrument or the decree, order or award prescribe a restricted state in such property. 8. It has been laid down by the Supreme Court in Totha Shesharathamma v. Thotha Manikyamma, 1991 IT 506, that section 14 (2) of the Hindu Succession Act 1956 is in the nature of proviso or an exception to section 14 and comes into operation only if an acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu to the property. If the case falls under the provisions of section 14 (1) of the Act, then the female Hindu shall be held to be full owner of the property and sub-section (2) of section 14 will only apply where the property is acquired without there being any pre-existing right of the female Hindu In such property. It has further observed that in order to arrive at a conclusion, the court would sit in the armed chair of the testator or its maker, summon to its aid attending circumstances to execute the instrument, relationship of the parties and to see whether the Hindu female acquired the property with vistage of pre-existing right, and the will, the gift deed, order, decree or an award of the Civil Court or in any of the forms known to law, was executed in recognition thereof or entitled under the existing law. If the rinding is positive her limited estate though created with restrictive covenant in Instrument or an omission to expressly so mentioned in full, particulars thereof in the Instrument in that regard are of little consequence Her limited estate gets blossomed into full ownership under section 14 (1) with a right to bequeath; gift over and alienation or to deal in any manner recognised by law. If on the other hand, the Hindu female acquires for the first time the title therein as a grant with restrictive estate under the instrument, with no pre-existing title or right, sub-section (2) of section 14 gets attracted and the restrictive covenant contained in the instrument would bind her. It would be found from a perusal of the plaint that there was no allegation to the effect that Smt. Birma Devi had any share in the property of the joint family prior to the partition by means of the sale deed dated 17-8 1939 in fact In their written statement the contesting defendants, in their additional pleas, paragraph no. 29, themselves stated that prior to the partition the plaintiff and Murarl Lal formed a joint Hindu Family and partition in 1939 took place of the joint Hindu family property. Obviously therefore, not being a co-parcener Smt. Birma Devi had no share or interest in the joint Hindu family property. 29, themselves stated that prior to the partition the plaintiff and Murarl Lal formed a joint Hindu Family and partition in 1939 took place of the joint Hindu family property. Obviously therefore, not being a co-parcener Smt. Birma Devi had no share or interest in the joint Hindu family property. It is not the case of any party nor was there any evidence to the effect that the property was jointly acquired by the plaintiff, Murarl Lal and Smt. Birma Devi or they were joint owners thereof. 9. In fact it was specifically stated by the plaintiff PW Ram Saran Desh Pandey that the property subject matter of partition was inherited by him and his father in equal shares from his grand mother. 10. In this regard it would be found that there is a clear and unequivocal finding of the first appellate court to the effect that Smt Birma Devi had no pre-existing right in the property in question The said property was the joint Hindu family property in which only her husband Murari Lal and son Ram Saran the plaintiff had interest. For the first time by means of the partition deed Smt. Birma Devi was given the properties in lot no. 2 with life estate. Being a finding of fact, it is not open to challenge in this second appeal. More so when there is nothing to indicate that in arriving at its conclusion, the learned lower appellate court ignored any material evidence on record. The principles laid down by a Division Bench of the Calcutta High Court in Jatia Devi v. Sbyara Sender Agarwalla, AIR 1959 Cal. 338 , may usefully be quoted here. Para two thereof runs as follows t "the petitioner Jaria Devi claims title to the money as the heiress of her husband who was one of the four co-parceners of the particular family owning inter alia, the acquired property and alleges that under a deed of partition she had been allotted a moiety share of the property along with others in lieu of her admitted one-fourth share in the joint properties. She contends that in the circumstances, her limited interest as a Hindu widow in the properties allotted to her as aforesaid, most be held to have been transformed into absolute interest under section 14 (1) of the new Hindu Succession Act If this had been a simple case of partition, allotting properties to the parries in proportion to their admitted shares, the petitioner's contention might have been correct, but where, as here, the widow co-sharer has been allotted properties not strictly according to her share, under a deed which is described as a deed of partition but which, in reality, is a deed of family arrangement not allotting properties to the widow strictly in accordance with any admitted share but by way of family arrangement, expressly stipulating that the widow will have no more than a life interest therein, the case, in our opinion, would fall within the exception section 14 (2) and not within the general rule, enacted in section 14 (1) of the Act. The petitioner's title to the acquired property is really founded on the above deed and not on any admitted share of inheritance." 11. Viewed In the light of the above facts regarding there being no pre-existing right in the property in question, the conclusion which follows is that, by means of the partition deed dated 17-3-1939 which partakes the nature of deed of family arrangement, for the first time the property mentioned in lot 2 there of was acquired by Smt. Birma Devi Since there was a specific clause in the said instrument that Smt. Birma Devi would remain owner of the property in lot 2 till her life time, what she got was a limited estate in the said property. Sub-section (2) to section 14 of the Hindu Succession Act thus became applicable and her right in this property was not converted into an absolute right under section 14 (1) there of The conclusions and findings of the learned lower appellate court on this point thus deserves to be confirmed. 12. This brings us to the next question in issue in the appeal. 12. This brings us to the next question in issue in the appeal. The contention on behalf of the appellants is that after the death of Smt. Birma Devi in 3976 her interest in the property in lot 2 reverted to her husband Murari Lal and son plaintiff Ram in equal she-res Consequently despite the finding to the effect that the property in dispute did not pertain to the lot no. 1 of Murari Lal the vendor of the appellants and he had no right to transfer the same in the year 1966, the sale deed dated 21-1-1966 would enure to the extent of 1/2 share devolving upon Murari Lal on the death of Smt. Birma Devi. As already stated above, there is a categorical finding of the lower appellate court to the effect that the disputed property is not part of house no. 13-A It was not allotted in the share of Murari Lal rather was part of the Baghicha allotted in the share of Smt. Birma Devi and the constructions standing on the disputed land were not in existence at the time of partition, rather were made subsequently by the plaintiff for keeping her horse and later on he surrendered possession over the said construction to Smt. Birma Devi. Under these circumstances it is obvious that the title, if any, to the prperty in dispute could be transferred to the defendant appellant only Birma Devi and not by Murari Lal or any one else. The defendant-appellants thereof, were rightly held not to have]! secured any right or title to this property on account of its alleged transfer by sale deed dated 21-1- 1966 by Murari Lal. 13. There is another aspect of the matter which has its bearing on the question in issue. The contention of the plaintiff respondent from the very beginning has been that the transfer by means of sale deed dated 21-1-1966 was only of property bearing house no. 10 to 13-A and the boundaries were wrongly described so as to include the land in dispute situated adjacent to the west of house no. 13-A. The case of the plaintiff is that the room situate in disputed land was let out to the defendants nos. 10 to 13-A and the boundaries were wrongly described so as to include the land in dispute situated adjacent to the west of house no. 13-A. The case of the plaintiff is that the room situate in disputed land was let out to the defendants nos. 4 and 5 by Smt. Birma Devi who realised the rent from them in her life time and after her death the same is being paid to the plaintiff, as has also been found established by the lower appellate court from the evidence on record. As far as the decree in the SCC. Suit against defendant nos 4 and 5 is concerned, the plaintiff not being a party to the same is not bound by it. 14. Apart from the conclusion to the effect that Murari Lal had no right to transfer the disputed property, the question which still survives however, is whether the disputed property was at all the subject matter of the sale deed dated 21-1-1966. In this regard a perusal of certified copy of the sale deed dated 21-1-1966 on record of the trial court would show that in the body of the recitals therein, it is clearly mentioned that what was intended to be transferred was house/shop bearing numbers 10 to 13 and 13-A. It was further specified that the said property numbers 10 to 13-A. So transferred were those which came to the share of Murari Lal by partition dated 17-8-1939. The mischelf appears to have been done in the boundaries at the foot of the sale deed. The fact however, remains that the transfer made was of house nos. 10 to 13 and 13-A as specified in the partition deed dated 17-8-1939 in the lot no. 1 Despite bondaries in the sale deed indicating transfer of property, bounded to wards west by a common passage and thereafter Ahata of Smt. Birma Devi, therefore what was actually transferred by this sale deed, were the house nos. 10 to 13 and 13-A and nothing beyond It. In this view of the matter, the sale deed upon which the defendant-appellants are basing their claim to the disputed property actually did not transfer the said property In suit. Consequently also there could be no question of the sale deed enuring in respect of 1/2 share in the property in suit, devolving upon Murari Lal, on the death of Smt. Birma Devi. Consequently also there could be no question of the sale deed enuring in respect of 1/2 share in the property in suit, devolving upon Murari Lal, on the death of Smt. Birma Devi. The lower appellate court thus for all the above stated reasons rightly allowed the appeal and decreed the plaintiff's suit. This appeal has no merit. 15. The appeal is accordingly dismissed. No order as to costs