Judgment ( 1. ) PLAINTIFF Devi Bai, who died during the pendency of this appeal, preferred this appeal aggrieved by judgment and decree dated 27. 9. 1993 by District Judge, Sehore in Civil Appeal no. 64-A/1993 by which the judgment and decree passed in her favour by the Civil Judge Class I Sehore,, in Civil Suit no. 31 -A/79 dated 25. 3. 1986 was reversed and the suit of the plaintiff was dismissed. : ( 2. ) THIS appeal was admitted on 29. 6. 1995 on following substantial question of law: "a. Finding that the appellant who was defendant no. 3 brought on record as a legal representative of the deceased Dalla and after the death of bhaironji, transposed as a plaintiff, was the Court justified in non-suiting her because of pleadings? B. Having held the property (a) in possession of Dallaji was ancestral, could Dallaji sell any specific property unless partition between him (Dallaji) and his son was effected and proved? (b) If joint, could Dallaji sell any property without legal necessity? did the defendants Nos. 1 (a) to (i) and 2 prove this?" ( 3. ) THE learned counsel appearing for the appellant submitted that the trial Court after due consideration of the evidence of the parties arrived at a finding that there was no partition between Dallaji and Bheroji, the father and the son, but the appellate Court without considering the pleadings and the evidence on record, reversed the aforesaid findings. That, except the findings of the trial Court in respect of partition, other findings were maintained by the appellate Court. The findings recorded by the appellate Court in para 21 are apparently perverse and deserve to be set aside. (iii) The defendant had not pleaded partition specifically the date of partition, but it was pleaded of 40 years back. The witnesses of the defendants stated that alleged partition took place 15 years before filing of the suit, which was contrary to the pleadings. The trial Court after due appreciation of the evidence recorded findings in favour of the plaintiff, which have been erroneously reversed by the appellate Court. I. L R [2009] M. P ramawtarvs. MANGILAL (DECEASED) THROUGH L. RS. (iv) The burden of proof was on the defendant but the defendant failed to discharge it. The trial Court after due appreciation of the evidence recorded findings in favour of the plaintiff, which have been erroneously reversed by the appellate Court. I. L R [2009] M. P ramawtarvs. MANGILAL (DECEASED) THROUGH L. RS. (iv) The burden of proof was on the defendant but the defendant failed to discharge it. (v) The appellate Court also not considered the fact that during the pendency of the suit, plaintiff Bheroji died and Dev Bai, his sister was brought on record, which was a material aspect in the matter. (vi) That, there was no partition of ancestral property between Dallaji and Bheroji, and in these circumstances, Dallaji was not entitled to alienate. ancestral properties without legal necessity. It is prayed that this appeal be allowed, the judgment and decree of the appellate Court be set aside and that of the trial court be restored. ( 4. ) SHRI Shailendra Varma, the learned counsel appearing for the respondents, supported the judgment and decree. He referred various paragraphs of the written statement and statement of Dev Bai in support of his contention. It was submitted by him that the appellate Court rightly recorded findings that ancestral property was partitioned by Dallaji with Bheroji,. The trial Court without considering the material on record, decree the suit, which has been rightly dismissed by the appellate court. It is submitted by Shri Verma that the judgment and decree of the appellate court is based on recording of finding of fact, needs no interference by this court. ( 5. ) TO appreciate rival contentions of the parties, factual position in the case may be stated. The genealogical tree of the parties is as under: (a) The case of the plaintiff as pleaded in the plaint was that late madruji acquired, owned and possessed till his death various properties of which details are mentioned in para 2 of the plaint as Group A, Group B, Group C and group D. Groups A,b,c relate to various lands of village Khandwa Tehsil and dist. Sehore. Group D is the house property. So far as land shown in group A is concerned, there is no dispute-in this case as the sale deed by which Group-A properties were alienated, was dated 27. 5. 63 and these lands were alienated jointly by Dallaji and Bheroji, plaintiff and defendant no. 3. Sehore. Group D is the house property. So far as land shown in group A is concerned, there is no dispute-in this case as the sale deed by which Group-A properties were alienated, was dated 27. 5. 63 and these lands were alienated jointly by Dallaji and Bheroji, plaintiff and defendant no. 3. (b) The suit was filed by Bheroji against his father on the allegation that he was about 85 years old very much addicted to wine since long. He stopped actual cultivation since long and plaintiff alone was in actual possession of all the lands. The plaintiff was earning from the land and maintaining himself and his father defendant no. 3. As the plaintiff was not providing wine or at some times providing limited wine, so he was annoyed with the plaintiff and because of this, there were quarrels in between them. The defendants 1 and 2 being near relations and neighbourers were knowing all this and to avail opportunity for their benefit and taking undue advantage of addiction of him, provided liquor in excess to the defendant no. 3, prevailed upon him. Relations between defendant no. 3, with defendants 1 and 2 became thick and the defendants taking advantages of this obtained signatures of defendant no. 3 on various documents. The defendant no. 3 for purchase of wine had sold initially, pieces of the land to other also and the plaintiff had to pay off those considerations. So far as three sale deeds in question are concerned, details were given in para 4 of the plaint. The defendants 1 and 2 filed a civil suit on the strength of the registered sale deed mentioned in para 4 (a)of the paint and obtained an ad interim injunction order ex parte without service of notice upon plaintiff on 2. 7. 1968. By the interim injunction, the plaintiff was restrained from entering into the lands mentioned in Groups B and C. Thereafter the defendants 1 and 2 destroyed the crops sown by the plaintiff. The ex parte injunction was confirmed by the trial Court and the appeal against it was pending at the time of filing of the suit before the Additional District Judge, Sehore. Proceedings under Section 145 Cr. P. C. were also pending as Misc. Cr. Case No. 98/ 1968 before the concerned Executive Magistrate. The ex parte injunction was confirmed by the trial Court and the appeal against it was pending at the time of filing of the suit before the Additional District Judge, Sehore. Proceedings under Section 145 Cr. P. C. were also pending as Misc. Cr. Case No. 98/ 1968 before the concerned Executive Magistrate. It was ultimately decided against the plaintiff and the order was challenged by filing a revision before the ASJ sehore. (c) That, the sale deeds in respect of properties shown in Groups B and C dated 28. 2. 1968 and 29. 5. 1968 by Dallaji in favour of defendants 1 and 2 were challenged by the plaintiff on the grounds that all were null and void and were not binding on the plaintiff. The transactions were made by defendant no. 3 under undue influence, without his free consent and when he was not capable of understanding the nature of said transactions or forming rational judgments as to its effect upon his interest. No consideration was paid to defendant no. 3 of the transactions. (d) That, the defendant no. 3 had no right or authority or title to sell all or any portion of the lands as all of them were ancestral properties and without legal necessity could not have been sold. The defendant no. 3 had only half share in it and after his death, during the pendency of the suit, the plaintiff Bheroji became the sole owner of the property. (e) That land of Khasra Nos. 158/159/1 measuring 8. 5 acres was also sold by defendant no. 3 to one Mukhna ji. The plaintiff,on knowing it, returned the consideration and got land back and was in exclusive possession over it. On the aforesaid grounds, the plaintiff prayed for declarations that the sale deeds be declared as illegal, null and void, ineffective and not binding upon the plaintiff and claimed possession of the lands. took following pleas: (a) That, the suit of plaintiff was barred by limitation and the civil Court had no jurisdiction to try the same. (b) That, Alfooji became a Mohammadan and all his rights were relinquished from the family. Bhuraji was the gharjamai (son in law residing with father in law) of Mandruji. The wife of Alfooji also went in Natra when Dallaji was hardly about 10 years of age. (b) That, Alfooji became a Mohammadan and all his rights were relinquished from the family. Bhuraji was the gharjamai (son in law residing with father in law) of Mandruji. The wife of Alfooji also went in Natra when Dallaji was hardly about 10 years of age. The status of the ancestral property had come to an end from that very day when Alfooji became mohammadan. Bhuraji brought Dallaji and gave him some land and a house also. Dallaji during his life time also transferred some land measuring about 13 acres to Rewaram, Salagram, Ram Narain and Jagannath of Khandwa. Bheraji was arrested in an offence under Sections 302 and 376 I. P. C. in which Dallaji sold about 10 acres of land to Ghasiram. The wife of the plaintiff also left him and opted in Natra. marriage. Bheroji, was separated by the deceased Dallaji before 40 years after giving him share in agricultural land. The land in group A was also given in his share and half portion of the house. The plaintiff sold his land in the year 1963 and sold half of his house to Shankar Lai and half to defendants (c) During the pendency of the suit Dev Bai was party in the capacity of defendant. Initially she was added as LR of dallaji and after the death of Bheroji, she was transposed as plaintiff. The case of plaintiff and Dalla ji was inconsistent, so she took inconsistent pleas and the suit deserves to be dismissed. Apart from this, the cause of action accrues to Dev Bai from the date of her transposition as plaintiff and the suit on the aforesaid date was time barred. On the aforesaid grounds, defendants 1 and 2 contested the suit inter alia by denying allegations in the plaint. ( 7. ) THE trial Court framed issues and after recording evidence arrived at a finding shown against each of the issues. (a) The trial Court found as under: (i) that Dallaji was in habit of consuming liquor and was an old person. He was also sick because of old age and was unable to move, but it was not proved that he was unable to understand his well beings. (a) The trial Court found as under: (i) that Dallaji was in habit of consuming liquor and was an old person. He was also sick because of old age and was unable to move, but it was not proved that he was unable to understand his well beings. In absence of evidence that Dallaji lost his power of understanding or the sale deeds were got registered under influence, no finding can be recorded in favour of the plaintiff and accordingly issue no. 1 was decided against the plaintiff (ii) that the. plaintiff successfully proved that the consideration of the sale deeds dated 28. 2. 68 and 29. 5. 1968 were not paid to Dallaji or to the plaintiff. The burden was on the defendant to prove payment of such consideration- The evidence produced by the defendant was not convincing. Apart from this the evidence produced before the Tehsildar was entirely different and the defendant was confronted with the previous statement. On appreciation of the entire evidence, the trial Courtin paragraphs 8,9 and 10 recorded findings in favour of the plaintiff that the sale deeds were without any consideration. That there was no misjoinder cause of action in the suit because validity of two sale deeds were. challenged, as the validity was challenged on the same ground. There was no mis-joinder of cause of action in the suit. The order under Section 145 Cr. P. C. by the S. D. O. was in accordance with law and could not have been challenged by the plaintiff. The findings recorded in the proceedings under Section 145 Cr. P. C. were factual which cannot be challenged in the civil suit. (b) The trial Court while considering issue no. 3 in paras 14 to 18, recorded findings that the disputed properties were ancestral properties in the hands of dallaji. There was no partition between Dallaji and Bheroji The plaintiff successfully proved that there was no partition between Dallaji and Bheroji and relying on the evidence of the plaintiff and disbelieving the evidence of defendant, a finding was recorded by the trial Court that no partition took place between them. There was no partition between Dallaji and Bheroji The plaintiff successfully proved that there was no partition between Dallaji and Bheroji and relying on the evidence of the plaintiff and disbelieving the evidence of defendant, a finding was recorded by the trial Court that no partition took place between them. While considering this aspect, the trial Court considered the sale deed in respect of lands of Group A and found that on the sale deeds both Dallaji and Bheroji signed and if there was earlier partition of the said land, there was no question of getting signatures of both father and son on the sale deed. (c ). The defendants in the evidence stated that the partition took place 15 years back while in the written statement it was pleaded as 40 years back. There was material discrepancy between pleadings and proof, and the evidence of the defendants was not reliable. (d) That, in the properties, plaintiff Bheroji was having half share and dallaji was not having any right to alienate property, including the share of plaintiff bheroji. The sale deeds were not executed for the necessity of family. The trial court considered in this regard plea of defendant that an amount of Rs. 2,000/-was borrowed by Dallaji for. last rites of his wife and also that Dallaji borrowed amount for the marriage of daughter Devbai, but disbelieved the evidence. That, the suit was within limitation as it was filed within 3 years from the sale deeds dated 22. 6. 1968 and 29. 5. 1968. (e) Recording the aforesaid findings, the trial Court found that the plaintiff was entitled for a decree for a declaration that the sale deeds dated 22. 6. 68 and 29 5. 1968 so far it relates to the share and entitlement of Bheraji, were illegal and were not binding on the plaintiff. The LRs of defendant no. 2 Mangi Lai and defendant Badria Prasad within three months from the date of decree may file a suit for partition and get their title declared otherwise the plaintiff shall be entitled to possession of the land properties shown in Groups B,c and D,. ( 8. ) AGAINST the judgment and decree passed by the trial Court, defendant preferred an appeal. The appellate Court recorded following findings: (i) That, for the disputed sale deeds, defendants 1 and 2 had not paid any consideration. ( 8. ) AGAINST the judgment and decree passed by the trial Court, defendant preferred an appeal. The appellate Court recorded following findings: (i) That, for the disputed sale deeds, defendants 1 and 2 had not paid any consideration. Defendants 1 and 2 were taking care of defendant no. 1 in his old age and were providing food also. The sale deeds were got executed by undue influence and without consideration. (ii) That, both the sale deeds were without any consideration, The aforesaid sale deeds were not challenged by the vendor so the plaintiff Bheroji was not entitled to challenge the sale deed. (iii) That the disputed lands were ancestral properties. The lands vere purchased before 40 years of filing of the suit and fell into the share of defendant no. 3. (iv) The appellate Court reversed the finding of the trial Court in respect of non-partition of the properties and recorded finding that the aforesaid lands were divided between Dallaji and Bhero Ji. The appellate Court also found that a criminal case was registered against the plaintiff Bheroji under Sections 376 and 302 I. P. C. . in which he was arrested and was convicted. During this period, wife of Bheroji left to the plaintiff and defendant no. 3 sold 15 acres of land. The plaintiff was of a bad character and his conduct was not good so the relations between plaintiff and his father were not good, they were divided and residing separately. (v) The appellate Court also recorded finding that after release from the jail, the plaintiff and his father partitioned the property. That irrigated land of 9 acres along with well, of which details were given in Group A, were given to the plaintiff, while defendant no. 3 retained 23 acres unirrigated land of which details were given in groups B and C. On these grounds, the appellate Court found that division between father and son was proved and in this regard, the finding of the trial Court were reversed. RA M AWTA R Vs. MANGILAL (DECEASED) THROUGH L. RS. (vi) In para 22, the appellate Court found that the properties were already divided before sale of the property shown in groups B and C, the defendant no. 3 was sole owner of the property and was entitled to sell. The plaintiff was not entitled to challenge the aforesaid sell. RA M AWTA R Vs. MANGILAL (DECEASED) THROUGH L. RS. (vi) In para 22, the appellate Court found that the properties were already divided before sale of the property shown in groups B and C, the defendant no. 3 was sole owner of the property and was entitled to sell. The plaintiff was not entitled to challenge the aforesaid sell. The appellate Court found that the plaintiff dev Bai cannot get any right after the death of plaintiff. On these grounds, the suit was dismissed. ( 9. ) THE findings recorded by the appellate Court may be summarized in nutshell that the appellate Court reversed the finding of the trial Court in so far as it relates to partition between plaintiff Bheroji and defendant no. 3 Dallaji, and recorded finding that before sale of the properties of Groups B,c and D, partition took place but other findings in favour of the plaintiff by the trial Court were maintained/affirmed. ( 10. ) SO the mute question in this second appeal is whether the findings of the appellate Court that there was partition between plaintiff Bheroji and defendant no. 3 Dallaji was proved or it was in accordance with law. The learned counsel for the appellant placed reliance to two judgments of the Apex Court. In Kashi nath vs. Jaganatth (2003) 8 SCC 740 , the apex Court held that if there is variation between pleadings and evidence, such evidence cannot be relied upon and an adverse inference is to be drawn, as the pleadings and evidence are self-contradictory. Another judgment relied upon by the appellant is of Venkataramana hebbar vs. M. Rajagopal, Hebbar[ (2007 )6 SCC 401]. The apex Court held that in a suit in which plaintiff claimed partition of property in question and the defendant contended that since the parties had arrived at a family settlement, part of it had been acted upon and the plaintiff was estopped from filing of the said suit, then it must be established by the defendant that there had been a partition by metes and bounds. Mere separate possession, unless a partition of joint family takes place by metes and bounds, will not non suit the plaintiff. ( 11. ) IN the light of the aforesaid judgments of the apex Court, the factual position in the present case may be looked into. Mere separate possession, unless a partition of joint family takes place by metes and bounds, will not non suit the plaintiff. ( 11. ) IN the light of the aforesaid judgments of the apex Court, the factual position in the present case may be looked into. The case of the plaintiff was very specific that there was no partition between Bheroji and Dallaji. The defendant no. 3 Dallaji alienated specific properties shown in Groups B. C. and D, The defendants in the written statement in para 8 specifically pleaded that the plaintiff was separated by the deceased Dalla Ji before 40 years, after giving him agricultural land mentioned in para 2 in group A and half of the house which the plaintiff Bheroji transferred to one Shankar lal and defendants 1 and 2. Accordingly, lands mentioned in para 2 Group Bandc were sold to defendants 1 and 2 by Dallaji without the consent of plaintiff. The plaintiff Bheroji was estopped to challenge the transaction. As Dallaji was recorded bhumiswami of the land mentioned in groups (a), sold share of the plaintiff jointly to the respondent. Defendant Dallaji was the sole owner of the rest of property after partition. The aforesaid pleadings are vague in respect of partition, because in paras 8 and 23 of the written statement, ramawtar VS. MANG1 LAL (DECEASED) THROUGH L. RS. the defendant pleaded that plaintiff Bheroji was separated before 40 years but had riot specifically pleaded a partition between father and son by meets and bound. Even for the sake-of argumentythe pleadings may be treated as of that before 40 years, there was partitibflfoemeen Bheroji and Dallaji then the defendants evidence was contrary to {he aforesaid pleadings. DW1 Mangi lal in para 11 of his statement specifically stated that the partition took place 15-16 years back. His statement was recorded on 16. 4. 1977. Other witness DW2 gaurishankar in para 9 of the statement stated that before 15 years, there was partition between Dallaji and Bheroji. DW3 Mohan lal though stated that there was a partition between Dallaji and Bheroji, but in para 12 he stated that partition was effected in the presence of Mangi Lal DW1, while Mangi lal had not admitted this fact in para 11 of his statement, though he was asked very specifically whether partition was effected in his presence. DW3 Mohan lal though stated that there was a partition between Dallaji and Bheroji, but in para 12 he stated that partition was effected in the presence of Mangi Lal DW1, while Mangi lal had not admitted this fact in para 11 of his statement, though he was asked very specifically whether partition was effected in his presence. Apart from this, if there was a partition, between Dallaji and Bheroji then for the sale of Group A lands, there was no question of execution of sale deeds by both Dallaji and Bheroji. These aspects were considered by the trial Court while recording a finding that there was no partition of ancestral lands between Dallajil and Bheroji, but the appellate Court on hypothesis that after return from jail there was partition between plaintiff Bheroji and Dallaji was apparently erroneous. The defendant pleaded no such case in the written statement and in absence of any pleadings in that regard, the appellate court erred in reversing well considered findings of the trial Court. In view of the aforesaid, the findings of the appellate Court in thi regard are not sustainable under the law. It is settled law that the appellate Court before reversing finding of the trial court was required to look into the reasons of the trial court on the basis of which the trial Court recorded its findings and if without considering those reasons, the appellate Court reversed the finding, the aforesaid cannot be sustained under the law. Seemadhusudandas vs. Narayani Bai [ air 1983 SC 114 ] ( 12. ) APART from this, the appellate Court also recorded findings that Dallaji incurred certain expenses in defending Bheroji from criminal case, but in this regard, the defendant had not made any averments in the written statement. In absence of this, the findings of the appellate Court are based on surmises and conjectures. The findings recorded by the appellate Court in paras 21 and 22 of the judgment in respect of partition between Dallaji and Bheroji are not sustainable under the law and accordingly, the aforesaid findings are set aside. Except this, other findings of the trial Court were affirmed by the appellate Court in respect of which no arguments were advanced by the parties and the aforesaid findings which have attained finality need not be discussed in the second appeal. ( 13. Except this, other findings of the trial Court were affirmed by the appellate Court in respect of which no arguments were advanced by the parties and the aforesaid findings which have attained finality need not be discussed in the second appeal. ( 13. ) SO far as Dev Bai is concerned, initially she was impleaded after death of dallaji as defendant no. 3, as she was daughter of Dallaji, but after death of bheroji. sole plaintiff, she was transposed in place of Bheroji as Bheroji died issueless. Being sister of Bheroji, she was entitled to succeed the properties of bheroji as she was class II heir of Bheroji. Apart from this, being daughter of dallaji, in absence of any partition between-Bheroji and Dallaji, she was entitled for her share also in the properties of Dallaji and was entitled to contest the suit in place of plaintiff Bheroji by her transposition as plaintiff. ( 14. ) IN view of the aforesaid discussion, the judgment and decree passed by the appellate Court is not sustainable under the law and accordingly it is set aside and that of the trial Court is restored. A decree be drawn up, according to the judgment of the trial Court. Considering the facts of the case, the appellant shall be entitled for cost of this appeal Counsels fee Rs. 2,000/ -. Appeak allowed.