JUDGMENT P.G. Agarwal, J. 1. Head Mr. B.K. Goswami, learned senior Advocate appearing for the Appellants and Shri N. Dutta, learned Senior Advocate appearing for the Respondents. 2. The Second Appeal was disposed of by this Court vide order dated. 8.12.03 and thereafter the Respondents filed Civil Appeal No. 4586/05 and the matter was remitted back by the Apex Court for deciding four substantial questions of law and also to consider the arguments of the parties as regards Issue No. 5. The Facts 3. Shri Jyoti Prasad Agarwalla died on 17th January, 1951 leaving behind two sons namely, Chinmoy Agarwalla and Bishendra Agarwalla and five daughters, who are the Plaintiffs and who joined together to file T.S. No. 76/87 (hereinafter referred to as the Plaintiffs, for the purpose of convenience). 4. The case of the Plaintiffs is that Jyoti Parsad Agarwalla was the owner of Schedule-A land measuring 1B 4K described fully in Schedule-A. On the death of Jyoti Prasad Agarwalla the suit land devolved on the two sons, who enjoyed the suit property in equal shares. Bishendra Agarwalla died intestate on 6.9.74 and the share of Bishendra Agarwalla devolved on the Plaintiffs and Defendant No. 1 Chinmoy Agarwalla. The Defendant No. 1 however, executed two sale deeds on 29.4.82 whereby the entire suit property was sold to Defendant Nos. 2 to 4. The Plaintiffs, therefore, filed the suit for declaration of right, title and interest in respect of Schedule-B land which is 5/6th of the share of the Scheduled land and for recovery of khas possession and for declaration that the sale deeds No. 417 and 418 be declared as null and void. 5. The suit was not contested by Defendant No. 1 but contested by the purchaser i.e. Defendant Nos. 2 to 4 who filed a joint written statement raising the usual plea of non-maintainability, nonjoinder of party, limitation, adverse possession etc. etc. The Trial Court framed the following six issues.: 1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Is the suit barred by Section 27 Law of Limitation and adverse possession ? 4. Is the suit barred by waiver, estoppel and acquiescence? 5. Whether the Plaintiffs have any right, title and interest over the suit land? 6. To what relief, if any, is the Plaintiff entitled? 6. The trial Court by its judgment dated. 3. Is the suit barred by Section 27 Law of Limitation and adverse possession ? 4. Is the suit barred by waiver, estoppel and acquiescence? 5. Whether the Plaintiffs have any right, title and interest over the suit land? 6. To what relief, if any, is the Plaintiff entitled? 6. The trial Court by its judgment dated. 18.4.96 decided Issue Nos. 1, 2, 3 and 5 in favour of the Plaintiffs but Issue Nos. 4 and 6 were decided against the Plaintiffs and thereafter the suit was dismissed. 7. Feeling aggrieved, the Plaintiffs preferred Title Appeal No. 5/96. The Appellate Court allowed the appeal and observed as follows: In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and decree are set aside and the suit of the Plaintiffs succeeds and the suit is decreed with costs although and with all the reliefs that have been prayed for by the Plaintiffs and I declare that the Plaintiffs have rights, title and interest in the suit properties, the sale deeds dated 29.4.82 aforementioned are null and void and not binding on the Plaintiffs and the sale deeds have not vested any right, title or interest in the Respondent Nos. 2 to 6 in respect of Plaintiffs shares the suit properties. The suit is also decreed for recovery of khas possession of the suit properties by the Plaintiffs and the Defendant Nos. 2 to 6 are hereby permanently restrained and prohibited from making any construction on the suit land or from interfering in any manner whatsoever with the possession of the suit properties by the Plaintiffs. 8. Hence the present second appeal by the Defendants. It may be mentioned that the Defendant Pradip Sarma died during the pendency of the Title Suit and his legal heirs were impleaded as Appellant Nos. 3, 4 and 5. The other Appellant Prabir Bezbora died during the pendency of the second appeal and his legal heirs were impleaded by order dated 12.3.99. 9. At the time of admission of the appeal, the following substantial questions of law were formulated: 1. Whether the Id. Trial Court was justified in allowing the Plaintiff to expand their claim from 3K 15L to IB 2K 10L by way of amendment of the plaint? 2. Whether the Id. 9. At the time of admission of the appeal, the following substantial questions of law were formulated: 1. Whether the Id. Trial Court was justified in allowing the Plaintiff to expand their claim from 3K 15L to IB 2K 10L by way of amendment of the plaint? 2. Whether the Id. District Judge committed error of law in holding the suit was not barred by limitation Under Section 27 of the Limitation Act? 3. Whether the Id. District Judge committed error of law in not considering the question of protection Under Section 41 of the T.P. Act? 4. Whether a decree for khas possession of specified plot of land and without partition is permissible? 10. The Appellants had filed an application under Sub Clause 5 of Section 100 Code of Civil Procedure for formulating another substantial question of law challenging the Plaintiffs right, title over the suit land which was considered by the Trial Court as well as the Appellate Court as Issue No. 5. The Trial Court answered the said issue i.e. Issue No. 5 in favour of the Plaintiffs. In the appeal filed by the Plaintiffs, the present Appellant/Defendants did not challenge the said decision and it is, therefore, submitted by the plaintiff/Respondents, who have filed affidavit-in-opposition that the Appellants are prevented from challenging the decision in Issue No. 5. 11. In support of the above submission, Shri Dutta has placed reliance on the decision of the Apex Court in the case of Mahesh Chand Sarma v. Raj Kumari Sarma AIR 1996 SC 866 wherein the plea of limitation raised by the Defendants was considered by the Trial Court and the Trial Court held that the suit is within limitation. This decision of the Trial Court was not contested before the Bench while entertaining the second appeal. The Apex Court held that the party who abandons the particular plea on a particular suit cannot be allowed to reagitate the same in appeal. 12. In view of the above, the Appellant/Defendants cannot be allowed to challenge the finding of the Trial Court in Issue No. 5 and the substantial questions of law as raised by them cannot be formulated. However, considering the dispute raised in this appeal and as agreed upon by the counsel of both sides the substantial questions of law have been reformulated as below: 1. However, considering the dispute raised in this appeal and as agreed upon by the counsel of both sides the substantial questions of law have been reformulated as below: 1. What is die extent of Plaintiffs' right, title and interest over the suit land? 2. Whether the declaration of the two sale deeds being void is in accordance with law? 13. The admitted fact in the present case is that Jyoti Prasad Agarwalla died in the year 1951 i.e. before the Hindu Succession Act came into force and hence the suit property belonging to Late Jyoti Prasad Agarwalla devolved on his two sons, who were eligible to offer "Pinda". The Plaintiffs, who are the five daughters of Late Jyoti Prasad Agarwalla were not eligible/entitled to inherit the father's property prior to 1956 Act. Thus, we find that the entire 9K of land described in Schedule-A to the plaint devolved equally i.e. 4 1/2 K each on Defendant No. 1 Chinmoy Agarwalla and Defendant No. 2 Bishendra Agarwalla. Bishendra Agarwalla died intestate in the year 1974. He was unmarried and as he had no Class I heir, 4 1/2 K of land belonging to him, devolved on Class-II heir i.e. five sisters and one brother. Thus, the share of Bishendra Agarwalla amounting 4 1/2 K of land will be shared equally by six Class-II heirs. The total land comes to 90 Lessas and as such all these six heirs will get 15 Lessas each. The five Appellants combined together will get 75 Lessas i.e. 3K 15L of the land from the share of Bishendra Agarwalla, whereas the remaining 15 Lessas will go to Chainmoy Agarwalla. Thus, the total land which fell into the share of Chinmoy Agarwalla, Defendant No. 1 in the year 1974 after the death of his brother Bishendra Agarwalla, will be 4K 10L plus 15L i.e. total 1B 5L only and Plaintiffs share will be 3K 15 Lessas only and not 1B 2K 10L as described in Schedule-B to the plaint. 14. In view of the above, we hold that the Plaintiffs are not entitled to 5/6th share of the entire 9K of land but they are entitled to 5/6th share of the Bishendra Agarwalla's share which was 4K 10L only. 14. In view of the above, we hold that the Plaintiffs are not entitled to 5/6th share of the entire 9K of land but they are entitled to 5/6th share of the Bishendra Agarwalla's share which was 4K 10L only. The substantial questions of law is, therefore, answered by holding that the share of the Plaintiffs was to the extent of 3K 15L of land out of the Schedule-A land and the Defendant No. 1 was the owner of the remaining 1B 5 Lessas. 15. Now, coming to the question No. 2, Shri Goswami has submitted that as Defendant No. 1 had a share in the suit property and he had sold the same to the Appellant/Defendants by two sale deeds No. 417 and 418 the Appellate Court was wrong in holding that both the sale deeds are void. We do find that the entire 9K of land was transferred to the Appellant/Defendants by Defendant No. 1 by executing the above sale deeds but in view of the foregoing discussions, the Defendant No. 1 was the owner to the extent of 1B 5L only and as such the Defendant No. 1 could not have given more than what he had. It is well established that a vendor cannot transfer better title than what he has. In the instant case, Defendant No. 1's title was limited to the extent of 1B 5L only and he thus can transfer his right, title and interest over 1B 5L of land to the Appellant/Defendants. In that view of the matter the Appellate Court erred in holding that the two sale deeds dated 29.4.82 as null and void. 16. We, therefore, provide that although the total area of land mentioned in the above sale deeds is 1B 4K of land, the purchasers have acquired right, title and interest to the extent of 1B 5L only. The remaining 3K 125L belong to the Plaintiff and the said sale deeds shall not be enforceable against the Plaintiffs in respect of their share of 3K 15L. The Plaintiffs are also entitled to a decree for joint possession till the same is partitioned either amicably or through legal process. 17. The second appeal stands disposed of as aforesaid. Costs easy. 18. Let the decree be modified accordingly. Send down the records.