Judgment ( 1. ) THE appeal has been preferred by the defendant aggrieved by judgment and decree dated 13. 1. 1994 passed by First Additional District Judge Satna In C. A. No. 79-A/91 thereby partially modifying the judgment and decree dated 31. 7. 1985 passed by First Civil Judge class IInd Satna in Civil Suit No. 82-A/94. ( 2. ) PLAINTIFF/respondent Deosharan preferred instant suit for possession of disputed land bearing survey No. 180/1b in area 0. 77 decimal. The plaintiff base the title on sale deed dated 29. 3. 1971 executed by Chunwada in his favour for the aforesaid area out of survey NO. 180/1b. Plaintiff claimed to be in possession w. e. f. 12. 2. 1973. Earlier land was mortgaged with him. Plaintiff was forcibly dispossessed from the suit land by premchand. The defendant No. 1 claimed that he has purchased the disputed land from defendant No. 2 bhaiyalal. Defendant No. 2 got his name entered in the revenue records in collisuon with Patwari. Proceeding under section 145 Cr. P. C. was initiated in which it was held that defendant No. 1 was in possession of the land two months prior to date of attachment, therefore, the possession was handed over to defendant No. 1. In case land has been sold by Chunwada to defendant No. 1 or defendant No. 2, sale is not valid. ( 3. ) IN the written statement, defendants No. 1 and 2 have contended that Karn Bahadur Singh had purchased the disputed land from defendant No. 3 namely Chunwada and his two brothers namely Rama and Sudama vide registered sale deed dated 21. 9. 1967, thereafter Karn bahadur Singh was in possession of the disputed land till it was sold on 13. 7. 1971 to Smt. Ajay Kumar, later on, on 5. 4. 1972 the disputed land was sold to defendant No. 5 Ramesh Chand Jain, since then premchand Jain and Ramesh Chand Jain are in possession of the disputed land. Plaintiff was not in possession of the disputed land. Defendant No. 3 had no right to sell to the plaintiff, he had already sold the land to Karn Bahadur Singh. He had no subsisting title to the disputed land. ( 4. ) CHUNWADA in his separate written statement contended that he and his five brothers got 5 acres of land from their father. Each of them got 0. Defendant No. 3 had no right to sell to the plaintiff, he had already sold the land to Karn Bahadur Singh. He had no subsisting title to the disputed land. ( 4. ) CHUNWADA in his separate written statement contended that he and his five brothers got 5 acres of land from their father. Each of them got 0. 90 decimal of land in his share. Defendant No. 3 and his three brothers had sold their share to Karn Bahadur Singh on 21. 9. 1967 by registered sale deed. The total area sold was 2. 32 acres. Defendant No. 3 had informed to the plaintiff that he could sale only the remaining part of the land. The plaintiff was told to ascertain the area of unsold land and to prepare the sale deed. Remaining portion of 0. 12 decimal was belonging to Chunwada. Plaintiff was not in possession at any point of time. ( 5. ) THE Trial Court decreed the suit in part. The Trial court passed the decree in favour of the plaintiff for 0. 12 decimal of the land subject to payment of court fees of Rs. 77/- which was required to be paid by the plaintiff. As against the judgment and decree passed by the Trial Court plaintiff preferred appeal before the first Appellate Court, same has been partly allowed. Instead of 0. 12 decimal, suit has been decreed for an area of 0. 38 decimal. ( 6. ) SHRI R. P. Agrawal, Sr. Counsel has submitted that total area of land was 5. 39 acre which belonged to six brothers, each of them had 0. 90 decimal share in the aforesaid land. Three brothers namely Chunwada, rama and Sudama had sold the land to Karn Bahadur singh in the year 1967 vide registered sale deed (Ex. D-2 ). Counsel has further submitted that from the sale deed it is apparent that each of the brother has sold the share in equal proportion. The Appellate Court has not properly appreciated the sale deed and merely on the basis of the boundary described in the sale deed, the appellate Court could not have concluded that the land belonging to Chunwada was left on the spot and it was not belonging to two other brothers Rama and Sudama. After selling the land to Karn Bahadur Singh in the year 1967 out of 2. After selling the land to Karn Bahadur Singh in the year 1967 out of 2. 70 acres of the land by three brothers Chunwada, Rama and Sudama, they were left with remaining 0. 38 acres of land, out of which the land belonging to Chunwada was 0. 126 decimal, thus the judgment and decree passed by the Appellate Court exceeds the share which could have been sold by chunwada to the plaintiff/respondents. The decree to that extent be set aside. ( 7. ) SHRI M. L. Jaiswal, Sr. Counsel appearing for respondent has submitted that it is apparent from the statement of Sudama (DW-3) that he has sold the entire land to Karn Bahadur Singh. The boundaries described in the sale deed towards southern side indicated that the land of Chunwada was situated, which remained with Chunwada exactly that land has been sold. Land of rama and Sudama was not shown in the boundaries of the land mentioned in the sale deed. The land which remained with only Chunwada of 0. 38 decimal was not sold to Karn Bahadur Singh, thus to that extent appellate Court is right in decreeing the suit. ( 8. ) THE main question for consideration is how much area was sold to Karn Bahadur Singh by each of 3 brothers or in what proportion of share the area was sold by three brothers to Karn Bhadaur Singh vide sale deed (Ex. D-2) dated 21. 9. 1967. It is not disputed that area of 2. 32 acres was sold by three brothers and admittedly each of them had share of 0. 90 decimal in the total land, total share of the brothers in the aforesaid survey no. 180 was 2. 70 acres, Survey No. which was having total area of 5. 39 acres. It has not been mentioned in the sale deed that two brothers have sold their entire land and Chunwada had sold only portion of land, he has not sold 0. 38 acres of land. 180 was 2. 70 acres, Survey No. which was having total area of 5. 39 acres. It has not been mentioned in the sale deed that two brothers have sold their entire land and Chunwada had sold only portion of land, he has not sold 0. 38 acres of land. In the absence of mention in the sale deed that two brothers had sold their entire land and Chunwada had sold only about 60% of land of his share, it could not be held that two brothers had sold their entire land and remaining area left out was of Chunwada only, it is apparent from the sale deed that each of the brother had sold in equal proportion out of the share which was held by them in total area of 2. 32 and thereafter 0. 38 decimal area of land was left, that was obviously belonging to the three brothers. Each of them had subsisting interest approximately in 0. 126 decimal area. Merely by the fact that towards southern side land of Chunwada was shown and land of Rama and Sudama was not indicated in the boundaries, it could not have been assumed by the Appellate Court that entire land was sold by Rama and Sudama and only land in area 0. 38 decimal belonging to Chunwada remained on the spot. Reliance has been placed on the statement of Sudama (DW-5 ). In the examination in chief DW-5 has stated that the three brothers had sold their share to Karn Bahadur Singh, land towards northern side was sold to Karn Bahadur singh. There was no partition between six share holders in writing. There was mutual understanding between the brothers. He has expressed his ignorance to the fact that whether plaintiff has purchased any portion of land from Chunwada. Rama had sold his entire portion, he had also sold his entire portion. In case statement of witness is accepted even Chunwada had sold his entire land which is not so. Land in 0. 38 decimal remained after sale to Karn Bahadur Singh in the year 1967. It appears that the finding recorded by the Appellate Court is based on assumption. Statement of Sudama has to be read in entirety. In his statement sudama has nowhere stated that only the land belonging to Chunwada was not sold in full. Land in 0. 38 decimal remained after sale to Karn Bahadur Singh in the year 1967. It appears that the finding recorded by the Appellate Court is based on assumption. Statement of Sudama has to be read in entirety. In his statement sudama has nowhere stated that only the land belonging to Chunwada was not sold in full. He has stated in examination in chef that Rama, Sudama and chunwada had sold their share to Karn Bahadur Singh which is ex fasci contrary to shares held by them, the statement of Sudama cannot be construed so as to mean that entire land held by 3 brothers was sold to karn Bahadur Singh. It is not in dispute that 0. 38 decimal area remained even after sale to Karn Bahadur singh. The land was not sold in different proportions by three brothers. Had the area in different proportion would have been sold by them, the fact would have definitely been mentioned in the sale deed. There is no such recital in the sale deed executed in favour of Karn bahadur Singh in the year 1967. It appears that property has exchanged several hands, subsequently sale deeds were also executed with respect to the land as mentioned in the factual matrix. ( 9. ) CRUCIAL question for determination is how much land remained with Chunwada which he could have legally sold. He had competence to sell only 0. 126 decimal of the land as per his share not more than that. The plaintiff Deosharan has not been able to state in Para -9 how much land was belonging to whom and about the situation of the land of each of the parties. There were proceedings under section 145 Cr. P. C. also in which possession of the plaintiff was not found. It is apparent that Chunwada had no right to alienate 0. 778 decimal of the land in favour of the plaintiff as only 0. 38 decimal of land was left which was belonging to three brothers after selling the land to Karn Bahadur Singh. He had right to sell only 0. 126 decimal. Rajaram (PW-4) has stated that he was in possession of the land which was found in proceedings under section 145 cr. P. C. ( 10. ) IN my opinion, in view of the share of each of three brothers namely Chunwada, Sudama and Rama of 0. He had right to sell only 0. 126 decimal. Rajaram (PW-4) has stated that he was in possession of the land which was found in proceedings under section 145 cr. P. C. ( 10. ) IN my opinion, in view of the share of each of three brothers namely Chunwada, Sudama and Rama of 0. 90 decimal out of total area of 5. 39 acre and they having sold area of 2. 32 acre to Karn Bahadur Singh in the year 1967 each of them had subsisting in only 0. 126 decimal of area out of 0. 38 decimal which was not sold to Karn Bahadur Singh which could have been alienated by each of them. The finding recorded by the appellate Court that only 0. 38 decimal of the land belonging to Chunwad remained on the spot, cannot be permitted to sustain, same is not supported by the recital of the sale deed. Merely description of the boundaries could not be said to be enough to hold that remaining part of the land which was on the spot was exclusively belonging to Chunwad. The finding of Trial court has been illegally reversed by the Appellate court. ( 11. ) IN view of the aforesaid, judgment and decree passed by the Appellate Court is set aside. Decree passed by the Trial Court is partially modified. Suit is partially decreed to the extent of 0. 126 decimal of land instead of 0. 12 decimal of land. ( 12. ) RESULTANTLY, the appeal is allowed in part to the aforesaid extent. Parties to bear their own costs as incurred.