JUDGMENT : P.K. Misra, J. - The original Plaintiff is the Appellant. She had filed Title Suit No. 31 of 1980 in the Court of the Sub-ordinate Judge, Baripada, for partition in respect of 'B', 'C' and 'D' schedule properties. The suit was decreed preliminarily in part in respect of the said properties except the vacant site under Lot No. II of Schedule 'D' The appeal has been filed against the refusal of the trial Court to direct partition in respect of the vacant site of Lot No. II. The Respondents have not filed any appeal or cross-objection and as such the preliminary decree relating to other disputed properties except the vacant site of Lot No. II of Schedule 'D' has become final. During the pendency of the appeal the Plaintiff-Appellant having expired, the Defendant No. 1 Respondent No. 1, has been transposed as the Appellant as per the order dated 23.10.1989. 2. The admitted genealogy is as follows: 3. As per the case of the Plaintiff, Bhagabat died on 14.7.1950 leaving his widow, the Plaintiff and two sons, Shyamsundar and Gayamohan (Defendant No. 1). Shyamsundar died issueless in 1955 leaving his widow, Laxmi (Defendant No. 2). After the death of Raghunath in 1951 there was a dissension in the family and the property left by Raghunath was partitioned among the three branches. In the said partition, the heirs of Bhagabat got M. 65-4-15-4 gandas of land including the homestead and house in Baripada town described in Lot No. 11 of schedule 'D'. Defendant No. 3 got M. 86-10-2-8 gandas including the pucca building and homestead of village Markundi and Defendant No. 6 got M.72-15-12-16 gandas of land including a portion of pucca building and homestead in the same village i.e. Markundi. Subsequently, the Defendant No. 3 sold his homestead including the building at Markundi to Defendant No. 1 who in turn sold the same property to Defendant No. 6. Thereafter Defendant No. 1 constructed his separate residential house at Maitrapur, where the Plaintiff and Defendant No. 2 were living jointly with Defendant No. 1. It is alleged by the Plaintiff that after partition, the Defendant No. 1 sold away more than 48 Manas of land. Thereafter Defendant No. 1 constructed his separate residential house at Maitrapur, where the Plaintiff and Defendant No. 2 were living jointly with Defendant No. 1. It is alleged by the Plaintiff that after partition, the Defendant No. 1 sold away more than 48 Manas of land. The Plaintiff came to Baripada in March, 1989 and found some constructions on the vacant plot and learnt that Defendant No. 7 had purchased a portion of the vacant site from Defendant No. 6 and was constructing a house thereon. Similarly she learnt that Defendant No. 8 purchased another portion of the vacant site from Defendant No. 4 and was possessing the same. On further enquiry it was found that Defendant No. 4, the son of Defendant No. 3, had filed T.S. No. 14 of 1969 for partition of his share of properties against the Defendant Nos. 3 and 5 and the homestead and the house at Baripada had been fraudulently included in the said suit, which ended in a compromise. It is alleged that the Plaintiff, not being a party to the said suit, is not bound by, the decision in the said suit and as the homestead and house at Baripada had been allotted to the branch of Bhagabat, the other branches have no right over the same. It is further alleged that Defendant No. 1 had colluded with Defendant Nos. 3 to 6. It is claimed that Plaintiff continued to be in exclusive possession of the house and homestead at Baripada. As Defendant No. 1 was indiscriminately alienating the properties, the Plaintiff wanted her share which was refused. Accordingly, the suit for partition was filed. 4. Defendant Nos. 1 and 2 in their joint written statement admitted the factum of partition among the three branches. According to them a portion of Baripada land and house had been mutated in the name of Defendant No. 1 and the remaining portion had been left by Plaintiff and Defendant No. 2. It was further stated that Defendant Nos. 4 and 6 in collusion with Defendant No. 7 were trying to grab the vacant site at Baripada over which they had no right. The Defendants indicated their willingness for partition in the suit properties including Lot No. II of Schedule 'D' 5. Defendant Nos. It was further stated that Defendant Nos. 4 and 6 in collusion with Defendant No. 7 were trying to grab the vacant site at Baripada over which they had no right. The Defendants indicated their willingness for partition in the suit properties including Lot No. II of Schedule 'D' 5. Defendant Nos. 6, 7 and 8 in their joint written statement though disputed about the dates of death of Bhagabat and Raghuhath, admitted that Bhagabat had predeceased Raghunath. It was further pleaded by them that in the partition, the Plaintiffs branch had got M.O.O. -1-1-8 gandas of area from Baripada land towards west with a house thereon and Defendant No. 3 had got M.0-1-10-2 gandas towards south and Defendant No. 6 had got M.O-1-4-6 gandas towards north from the property described in Lot No. II of schedule 'D' of the plaint. It was further pleaded that Defendant No. 1 had got his share out of schedule 'D' of Lot No. II of the properties mutated in his own name in Mutation Case No. 204 of 1958-59 and the remaining portion remained in the name of the original owner, Raghunath Patra as Defendant Nos. 3 and 6 had not mutated their names in respect of their shares. It was further pleaded that the Defendant No, 1 had purchased the share of Defendant No. 6 and Defendant No. 8 purchased the share of Defendant No. 4 by registered sale-deeds and were in possession of the said lands. It was pleaded that T.S. No. 14 of 1969. the Defendant No. 1 was a party and Plaintiff being a maintenance-holder was not a necessary party to the said suit. In the said suit for partition, the portions subsequently purchased by Defendant No. 8 had been allotted to Defendant No. 4. It is pleaded that though Defendant No. 1 was bound by the earlier decree, he has set up his mother to bring the suit. It is also pleaded that in a proceeding under 145, Cr. P.C., the lands purchased by Defendants 7 and 8 from Defendant Nos. 4 and 6 had been declared to be under the possession of Defendant Nos. 7 and 8. In the alternative, it is pleaded that Defendant Nos. 3 and 6 had acquired title by adverse possession. 6. Defendant No. 5 through his Guardian ad litem has filed a written statement indicating that transfer made by Defendant Nos. 4 and 6 had been declared to be under the possession of Defendant Nos. 7 and 8. In the alternative, it is pleaded that Defendant Nos. 3 and 6 had acquired title by adverse possession. 6. Defendant No. 5 through his Guardian ad litem has filed a written statement indicating that transfer made by Defendant Nos. 4 and 6 were not binding on the minor Defendant and has practically supported the case of the Plaintiff. 7. The trial Court framed seven issues, and ultimately while decreeing preliminarily the suit for partition in respect of the disputed properties, dismissed the suit in respect of the vacant site of Lot No. II of schedule D' on the ground that the house standing on the said land had been allotted to the share of the Plaintiff along with Defendant No. 1 and Defendant Nos. 3 and 6 had got share from the vacant, site of the said plot which had been subsequently alienated in favour of Defendant Nos. 7 and 8. It was also held that Defendant Nos. 7 and 8 were in possession of those lands and a simple suit for partition without prayer for recovery of possession in respect of the aforesaid land which had been sold to Defendant Nos. 7 and 8, was not maintainable. 8. As already indicated, during the pendency of the appeal the original Plaintiff who was the sole Appellant expired. The original Defendant No. 1 Respondent No. 1 was transposed as Appellant by order dated 23.10.1989. At that time, objection had been raised on behalf of Respondent Nos. 3 to 8 that some of the legal representatives of the deceased Appellant had been left out. It was specifically ordered that ".... Effect of leaving out other legal representatives if any. shall be considered at the time of hearing..." 9. In course of hearing of this appeal, the learned Counsel appearing for the Respondent Nos. 1 to 8 raised preliminary objection regarding the maintainability of the appeal and contended that in the absence of other legal representatives, the appeal was not maintainable, Faced with the aforesaid situation, the transposed Appellant has filed petitions for substitution, setting aside abatement and condonation of delay and prayed that one Golap Naik. a daughter of the deceased-Appellant may be substituted as one of the Respondents. a daughter of the deceased-Appellant may be substituted as one of the Respondents. Counter affidavit has been filed on behalf of the contesting Respondent objecting to the prayer for substitution. The prayer for substitution cannot be allowed at this belated stage. The fact that Plaintiff-Appellant had left behind a daughter was very much known to Respondent No. l who had sought for being transposed on the Appellant. In fact, in spite of the specific objection, raised at that time the Respondent No. 1 who was transposed as the sole Appellant did not bother to take steps for impleading the daughter of the decease. -Appellant. Substitution is being sought for after a lapse of more than seven years. The obdurate attitude of the Respondent No. 1 who was transposed as the Appellant is very much evident from his conduct when he refused to implead the daughter in spite of objection raised by Defendant Nos. 3 to 8. In fact, in the objection for transposition, he has claimed himself to be the sole legal representative. Now averments have been made to the effect that he was under a bonafide wrong impression regarding the status of the daughter, does not cut much ice. In the absence of any sufficient reason explaining delay, the prayer for condoning the delay in filing the petition for substitution is rejected. Accordingly, the petitions for setting aside the abatement and substitution by adding the daughter of the deceased are rejected. 10. In view of the aforesaid orders, the question now arises as to whether the appeal is maintainable in the absence of the daughter of the deceased-Appellant when the appeal arises from a suit for partition. In the absence of all the co-sharers, the appeal can no longer be maintainable. The learned Counsel for the Appellant placed reliance on the decisions in Daya Ram and Others Vs. Shyam Sundari, Dolai Molliko and Others Vs. Krushna Chandra Patnaik and Others, Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others, : and contended that it can be said that there is substantial representation. The aforesaid decision can have no application to the facts of the present case. As already indicated it cannot be said that the conduct of the transposed Appellant in not impleading the daughter of the deceased-Appellant as a party, was bona fide. It is apparent that the transposed-Appellant wanted to steal a march. The aforesaid decision can have no application to the facts of the present case. As already indicated it cannot be said that the conduct of the transposed Appellant in not impleading the daughter of the deceased-Appellant as a party, was bona fide. It is apparent that the transposed-Appellant wanted to steal a march. The appeal being against a decree in a suit for partition unless all the co-sharers are parties, the appeal is not maintainable. The decision of this Court in Babaji Dehuri and Others Vs. Biranchi Ananta and Others. can have no application to the facts of the present appeal which arises out of a suit for partition. It is thus, clear that the appeal is not maintainable and liable to be dismissed on this score. 11. Even assuming that in the absence of the daughter of the deceased-Plaintiff, the appeal can proceed on the footing that the ultimate result in the appeal may ensure to the benefit of non-impleaded co-sharers, the appeal is liable to be dismissed on merit for the reasons indicated hereunder. The vacant site relating to Lot No. II of schedule 'D' had been sold to Defendant Nos. 7 and 8 and the Defendant Nos. 7 and 8 were found to be in possession in a proceeding u/s 145, Cr. P.C. The finding of the trial Court regarding the actual possession of Defendants 7 and 8 and prior to that by Defendants 3, 4 and 6 is based on discussion of evidence and nothing substantial has been argued before me to take a different view in the matter. Thus, at the time of filing suit, Defendants 7 and 8 were in possession of the vacant land Lot No. II of Schedule 'D'. A simple suit for partition by the Plaintiff without prayer for recovery of possession from Defendant Nos. 7 and 8 in respect of the vacant site of Lot No. II of Schedule 'D', is not maintainable. A similar view has been taken in a decision in Upendra Mohanto and Another Vs. Champa Bewa and Others, . 12. In the result, I find that there is no merit in the appeal which is accordingly dismissed, but in the circumstances without any cost. It is made clear that the preliminary decree for partition shall be operative in respect of the disputed property except the vacant site of Lot No. II of schedule 'D'. Champa Bewa and Others, . 12. In the result, I find that there is no merit in the appeal which is accordingly dismissed, but in the circumstances without any cost. It is made clear that the preliminary decree for partition shall be operative in respect of the disputed property except the vacant site of Lot No. II of schedule 'D'. Final Result : Dismissed