JUDGMENT : L. Mohapatra, J. - Defendants 1 and 2 are the Appellants before this Court against a confirming judgment. The suit was filed by the Respondents 1 and 2 for partition of the kha Ga and Gha schedule properties claiming half share therein. 2. Before discussing of the respective cases of the parties, the family genealogy which is not in dispute is given below: Nidhi Das _________|____________ | | Ragnu Das Krushna Das/W-Mangult / Baina Das (son) / __________________/____________ | | | Hari Das Siba Das Dhani Das / / / / Kali - son / / __________/___________ / | | / Ramanath Das Priyanath Das _____________/____________ | | W-Subhadra Jasoda (daughter) Plff. No. 1 Plff. No. 2 3. The case of the Plaintiffs-Respondents 1 and 2 is that Nidhi is the common ancestor of the family of the Plaintiffs and defendants 1 and 2. He had two sons, namely, Raghu and Krushna. Raghu and Krushna got separated prior to current settlement and were living in separate mess and property. Raghu left behind his three sons namely. Han. Siba and Dhani. Hari died as bachelor. Siba had one son namely. Kali whose wife is Subhadra (Plaintiff No. 1) and Jasoda is the daughter of Kali (Plaintiff No 2). Dhani had two sons namely. Ramanath Das and Priyanath Das who are defendants 1 and 2. The case of the Plaintiffs is that Krushna Das had one son namely. Baina and at the time of his death he had left his wife Manguli. After death of Krushna the properties developed upon Baina and after death of Baina. Manguli became the owner of the properties. After death of Manguli the properties devolved to the branch of Ragnu by survivorship and the Plaintiffs No. 1 being the wife of grand son of Raghu is also entitled to a share in the properties of Krushna which was received by the Dranch of Raghu by way of survivorship. The further case of the Plaintiffs is that Siba Das and Dhani Das were living in joint mess and property and after death of Siba. Dhani became the karta of the family as Kali Das was minor by that time. The further case of the Plaintiffs is that Siba Das and Dhani Das were living in joint mess and property and after death of Siba. Dhani became the karta of the family as Kali Das was minor by that time. Dhani fatner of defendants 1 and 2, was looking after the properties as Karta of the family and taking advantage of minority of Kali managed to record specific share in the record of rights in the current settlement though both Kali and Dhani were living in joint mess and property during current settlement operation. In the year 1934, there was some ill feeling between Kali and defendant Nos. 1 and 2 for which they were possessing lands separately according to their convenience and after death of Kali, Plaintiffs No. 1 came to know that some more lands out of the joint family properties have been recorded in the name of Dhani Das, father of the defendants 1 and 2 though Dhani was not entitled to the same and accordingly, the suit was filed. 4. Defendants 3, 4 and 5 did not contest the suit and were ex parte. Defendants 1 and 2 filed their written statement stating that Dhani and Kali had been separated prior to current settlement and they were living separately and because of such separation the properties have also been separately recorded in the current settlement. The further case of the defendants 1 and 2 is that after death of Krushna the wife of Manguli transferred the entire share of Krushna in favour of their father Dhani and he was in possession of the entire properties that had fallen to the share of Krushna The Plaintiffs claim to the properties left by Krushna on the ground that it came to the branch of Raghu by surveyors was denied. 5. On the above pleadings of the parties, the learned Addl. Subordinate Judge, Balasore framed since nine issues. The learned Addl. Sub-Judge found that the properties were not partitioned by metes and bounds between Siba, Dhani or Kali and accordingly there was no partition between the Plaintiffs and defendants 1 and 2. 5. On the above pleadings of the parties, the learned Addl. Subordinate Judge, Balasore framed since nine issues. The learned Addl. Sub-Judge found that the properties were not partitioned by metes and bounds between Siba, Dhani or Kali and accordingly there was no partition between the Plaintiffs and defendants 1 and 2. He also found that the defendants measurably failed to prove that the saie deed dated 14.2.22 executed by Kamali alias Manguli in favour of Dhani is genuine, valid, legal and therefore, consequently held that the properties left by Krushna devolved to the branch of Raghu and on the above findings allowed the suit. The appeal filed by the defendants 1 and 2 having been dismissed on similar findings, the present appeal has been filed. 6. This Court at the time of admission formulated the following substantial questions of law for adjudication at the time of hearing as enumerated in ground Nos. 1. 3 and 5 of the memorandum of appeal and the same are quoted below: 1. Whether the 'Kha' Schedule property in the circumstances could be acquired by the Siba and Dhani on the death of Manguli by survivorship? 3. Whether the Plaintiffs are entitled to impugn the sale deed as survivors or as reversioners? 5. Whether the findings of the learned Courts below that Ext. B was not genuine, valid and acted upon is sustainable in law? 7. Referring to substantial questions of law on which the appeal is admitted Shri Misra. learned Counsel appearing for the Appellants submitted that after it was disclosed in the written statement that the specific share of Krushna was purchased by Dhani under a registered sale deed in the year 1922 from Manguli (wife of Krushna) the Plaintiffs amended the plaint, but never challenged the validity of the sale deed executed by Manguli in favour of Dhani in the year 1922 and therefore, the Courts below should not have allowed the prayer of the Plaintiffs so far as it relates to Kha' and Gha' Schedule properties. According to Shri Misra the admitted case of the parties is that Raghu and Krushna were living separately before the current settlement. Krushna died leaving behind his wife Manguli and only son Baina. Baina pre-deceased Manguli leaving behind no heir and accordingly the property devolved upon wife of Krushna i.e. Manguli. According to Shri Misra the admitted case of the parties is that Raghu and Krushna were living separately before the current settlement. Krushna died leaving behind his wife Manguli and only son Baina. Baina pre-deceased Manguli leaving behind no heir and accordingly the property devolved upon wife of Krushna i.e. Manguli. The said Manguli sold a specific share under her possession in favour of Dhani (father of defendants 1 and 2) under a registered sale deed dated 14.2.1922 and accordingly Dhani became the absolute owner thereof. After death of Dhani the said property devolved upon his two sons (defendants 1 and 2) and being the owner in possession a sale deed executed by them in favour of defendant No. 5 in respect of the said property. When the sale deed dated 14.2.1922 is not challenged by the Plaintiffs the right, title and interest of Dhani over the property purchased under the sale deed dated 14.2.1922 remains un dispute and. therefore, the same cannot be claimed as joint family property belonging to Raghu's branch and a prayer for partition of said property cannot be maintained. 8. The learned Counsel appearing for the Respondents, on the other hand, submitted that though there was no pleading by the Plaintiffs challenging the validity of the sale deed dated 14.2.1922, the trial Court framed an issue and answered it against the defendants. The defendants having participated in the proceeding and led evidence on the said issue, it is not open for them now to challenge the same since no other point has been raised by the learned Counsel for the Appellants. I proceed to examine the aforesaid substantial question of law raised by the parties. 9. On a bare perusal of the original plaint, it appears that the specific case of the Plaintiffs is that there was a partition between Raghu and Krushna before the current settlement. Krushna dies leaving behind his wife Manguli and only son Baina. Baina predeceased Manguli and accordingly, Manguli became the owner in possession of the entire property that had fallen to the share of Krushna as the sole survivor. In view of such admitted fact, there cannot be any doubt that so far as 'Kha' Schedule property is concerned, Manguli was the sole owner thereof and had the authority to sale. Baina predeceased Manguli and accordingly, Manguli became the owner in possession of the entire property that had fallen to the share of Krushna as the sole survivor. In view of such admitted fact, there cannot be any doubt that so far as 'Kha' Schedule property is concerned, Manguli was the sole owner thereof and had the authority to sale. The case of the Plaintiffs is that after death of Manguli the property-held by her came to the branch of Raghu by survivorship and accordingly being the wife of the grand-son of Raghu she is entitled to a share therein. There was no whisper of any transfer made by Manguli in favour of any one in the plaint. In the written statement filed by defendants 1 and 2 it was disclosed that during life time of Manguli she had executed a sale deed on 14.2.1922 in favour of their father Dhani m respect of a specific share which is the subject matter of Schedule Kha'. Since Manguli was the owner of the property which had fallen to the share of Krushna was the sold survivor of that branch she had full authority to transfer the same and accordingly the said property cannot be the subject matter of partition so far as branch of Ragnu is concerned. After disclosure of such sale by Manguli the Plaintiffs amended the plaint but never challenged the validity of the sale deed executed by Manguli in favour of defendants. Now the question arises as to whether in absence of any pleading or challenge by the Plaintiffs with regard to validity of the sale deed dated 14.2.1922, the trial Court was legally justified in framing an issue with regard to validity of the said sale deed. As a matter of fact, the trial Court framed an issue to that effect and issue No. 5 runs as follows: Is the sale deed dt. 14.2.22 executed by Kamali ' Manguli in favour of Dhani genuine valid, legal and has been acted upon. 10. While answering issue No. 5. the trial Court referred to the document Ext.B as well as the evidence led on behalf of the parties and came to a conclusion that the aforesaid sale deed dated 14.2.1922 executed by Manguli in favour of Dhani is not genuine, valid and has not been acted upon. 10. While answering issue No. 5. the trial Court referred to the document Ext.B as well as the evidence led on behalf of the parties and came to a conclusion that the aforesaid sale deed dated 14.2.1922 executed by Manguli in favour of Dhani is not genuine, valid and has not been acted upon. The lower appellate Court also on consideration of evidence confirmed the said finding of the trial Court. On perusal of the reasons given by the trial Court as well as by the lower appellate Court, I find no justification to interfere with the same as all relevant evidence available on record with regard to the said document and the legal position have been thoroughly discussed by the Courts below. Though Shri Mishra, the learned Counsel for the Appellants does not challenge the reason given by the Courts below, submitted that in absence of any pleading or challenge by the Plaintiffs so far as sale deed dated 14.2.1922 is concerned, it was not open for the Courts below to frame an issue and answer the same. From the record it appears even though there was no pleading by the Plaintiffs challenging the sale deed dated 14.2.1922, an issue was framed and parties also lea evidence relating to the said issue. In this connection, a decision of the Apex Court in the case of Nedunuri Kameswaramma Vs. Sampati Subba Rao, may be referred to. 11. In the aforesaid decision in absence of an issue the parties had led evidence not only in support of their contentions, but in refutation of hose of the other side though before the Apex Court it was contended that in absence of an issue the Court should not have given a finding, the Apex Court held that where the parties went to trial fully knowing the rival case and lea all the evidence not only in support of their contentions but also in refutation of those of the other side, absence of an issue was not fatal to the case and it cannot be said that there was mistrial which vitiates the proceedings. The only difference in the aforesaid decision is that in the case before the Apex Court there were pleadings out no issue had been framed and in the present case though there was no pleading, an issue has been framed. The only difference in the aforesaid decision is that in the case before the Apex Court there were pleadings out no issue had been framed and in the present case though there was no pleading, an issue has been framed. When Doth the parties Knowing fully well the rival claims, led evidence in relation to the same, I am of the view that the principle laid down in the aforesaid decision of the Apex Court can be applied to the present case and it cannot be held that framing of an issue in absence of pleadings and answering the same by the Court below has not resulted in mistrial which vitiates the proceedings or causes any prejudice to the parties. Both the Courts having concurrently found the sale deed. Ext.B executed by Manguli in favour of Dhani as an invalid document, there is no reason for this Court to disturb the said finding of tact. No other substantial question of law having been raised by the learned Counsel for the Appellants, the appeal fails and is dismissed.