JUDGMENT V. GOPALA GOWDA, C.J. — This Letter Patent Appeal of the High Court is filed by the appellant-Ist Defendant under Chapter-VI of the Rules of High Court Orissa, 1948 questioning the correctness of the judgment dated 1.8.2000 passed by the learned Single Judge of this Court in F.A. No.359 of 1986 affirming the judgment and decree dated 30th September, 1986 passed by learned Additional Subordinate Judge, Cuttack (hereinafter ‘trial Judge’ in short) in Title Suit No.348 of 1980 urging various facts and legal contentions and prayed for setting aside the impugned judgment passed by the learned Single Judge in the aforesaid First Appeal and the judgment of the learned trial Judge urging various facts and legal grounds. For the sake of bravity, the parties as referred to as per their ranking assigned in the plaint presented before the trial Court. 2.The brief facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of the parties with a view to answer the points that would rise for consideration of this Court. The plaintiff-daughter of deceased late Kumar Charan Sahoo who died in the year 1969 leaving behind plaintiff and defendants, filed the suit for partition of the Scheduled properties for assigning 1/3rd share contending that they are of ancestral properties and further it is claimed by her that a portion of the joint family properties belonged to late Kumar Charan Sahoo, has been transferred by defendant no.1 and the same should be adjusted from his share that would be assigned. It was also alleged that Sabik Plot No.505 in Khata No.677 in Mouza : Chauliaganj is in the ancestral residential house of the family which was excluded from the plaint schedule. Plaintiff claimed for a partition by passing a preliminary decree in respect of her 1/3rd share in Schedule ‘A’ to ‘F’ and for grant of permanent injunction restraining the defendant no.1 from interfering with her separate allotment of the property in the final decree proceedings. 3.The case of the defendant no.1 is that the suit schedule properties originally belonged to the family of Hadibandhu Sahoo. He had four sons namely Dhruba, Kumar, Ananta and Rohit. According to defendant No.1 in the year 1940 there was partition amongst late Hadibandhu in his portion. 3.The case of the defendant no.1 is that the suit schedule properties originally belonged to the family of Hadibandhu Sahoo. He had four sons namely Dhruba, Kumar, Ananta and Rohit. According to defendant No.1 in the year 1940 there was partition amongst late Hadibandhu in his portion. In the said partition, Hadibandhu got certain properties to his share and each of his sons including the father of the plaintiff, defendant nos. 1 & 2 got separate shares. The suit properties appertaining to Khata No.41, 76, 79 and 116 fell to the share of Hadibandhu Sahoo in the aforesaid partition of the year 1940. It is stated by him that the successors of Hadibandhu Sahoo were proper and necessary parties in a suit for partition and in their absence, if the suit for partition at the instance of one of the daughters of late Kumar Charan Sahoo namely Charulata, is not maintainable. It is further stated that plot no.1088 as described in the schedule ‘A’ of the plaint measuring an area of A.0.825 decimals fell to the share of late Kumar Charan Sahoo in the aforesaid partition of the year 1940. Out of that area, late Kumar Charan Sahoo sold A.0.420 decimals much prior to filing of the suit. Therefore, the said area is not available for partition and also further stated that late Kumar Charan Sahoo had sold A.0.60 decimals out of plot no.818 described in schedule ‘A’ of the plaint and that apart major portion of Khata no.89 described in the schedule ‘B’ of the plaint has also been sold by late Kumar Sahoo and his co-sharers jointly. These Transferees, have not been impleaded in the suit. Hence the suit for partition in respect of that property is not maintainable. Further case of the defendant no.1 is that after death of late Kumar Sahoo, he sold plot nos. 98 and 99 out of Khata no.106 to defendant no. 2 in course of the management of his properties for legal necessity and this transfer was prior to institution of the suit. The plaintiff, therefore, is bound by such transfer in relation to the said properties and further indicated in his written statement about the misrepresentation regarding the area in respect of the suit plots by the plaintiff in the plaint. The plaintiff, therefore, is bound by such transfer in relation to the said properties and further indicated in his written statement about the misrepresentation regarding the area in respect of the suit plots by the plaintiff in the plaint. Further according to him, all the suit properties were ancestral properties in the hands of late Kumar Sahoo and defendant no.1, his son, as coparceners, had 8 annas share each. Kumar Sahoo died surviving his son (defendant no.1) and two daughters namely plaintiff and defendant no.2, 8 annas interest of late Kumar Sahoo in the ancestral properties should therefore, devolve on the plaintiff and defendants. Therefore, the plaintiff is ordinarily entitled to get 2 annas 8 paise share, defendant no.2 is entitled to 2 annas 8 paise share and defendant no.2 is entitled to 10 annas 8 paise share in the said joint family ancestral properties. Further it is stated that before the death of Kumar Sahoo, he had transferred a substantial schedule properties in favour of the plaintiff and defendant no.2 with the sole intention that these daughters should be satisfied with those properties and shall not claim anything more out of the rest of the landed properties left behind him. He further stated that in the sale deed executed by Kumar Sahoo in favour of plaintiff and defendant no.2 some appears to have been shown in the sale deeds but actually no consideration has been paid by them. Apart from the properties transferred by way of sale in favour of two daughters namely plaintiff and defendant no.2 they have also received adequate cash from their father so that they might not lay any claim on the properties in future. Therefore, it is stated by him that plaintiff and defendant no.2 are estopped from claiming any share in respect of suit properties. For the aforesaid reasons, he has prayed for dismissal of the suit. 4.Defendant no.1 filed additional written statement on 5.3.1986 categorically stating that plaintiff is not entitled to claim partition of the homestead land where houses are now standing with regard to the plot no.1 of schedule ‘E’ and further he has stated that he has no objection if the same are taken over by the plaintiff and defendant no.2 and adjustment was made with plaintiff. 5.So far as the case pleaded by defendant no.2 in her written statement is concerned, she denied the averments made by the plaintiff in the plaint. She further stated that she has purchased valuable considerations of homestead land by registered sale deed and claimed that she has right in respect of the properties as she has succeeded the properties of late Kumar Sahoo as per the provisions of Hindu Succession Act. In her additional written statement, she has further stated that the properties described in the schedules ‘A’ to ‘F’ are not at all the properties of the joint family but there are other movable and immovable properties of the family belonging to the parties. It was also denied that all the properties in schedules ‘A’ to ‘F’ are ancestral properties because many of them have been acquired by her father during his life time. In the instant additional written statement, she has stated that she is entitled to 1/3rd share from the entire joint family properties described in the schedules ‘A’ to ‘F’. She has specifically alleged that the same are the properties of her late father and the same have been acquired during his life time out of the income from his business. It is further stated in paragraph-10 of the written statement that the properties described in schedules ‘C’, to ‘F’ are self acquired properties of her father as he had purchased these properties during his life time either in his name or in the name of his wife Late Nisamani or his children. 6.On the basis of the pleadings; eleven issues have been framed and the suit went for trial. On behalf of the plaintiff including herself, three witnesses were examined and documents are marked as Exts. A-1 to B-1. On behalf of defendant no.1 & 2; 7 & 2 witnesses respectively were examined and documents are marked as Exts. A-1 to N-1. In spite of the respective claims, on appreciation of pleadings and legal evidence on record, the issues were answered in favour of the plaintiff and second defendant by recording reasons and the judgment was passed in their favour assigning the share. The plaintiff got 2 annas 8 paise (1/5th, 1/6th share and 1/3rd share in respect of the ancestral sold properties and super structures thereon including houses and buildings respectively of late Kumar Sahoo. Defendant no1. The plaintiff got 2 annas 8 paise (1/5th, 1/6th share and 1/3rd share in respect of the ancestral sold properties and super structures thereon including houses and buildings respectively of late Kumar Sahoo. Defendant no1. is also entitled to 10 annas 8 paise, 2/3 rd share and 1/3rd share in ancestral property and super structures thereon and defendant no.2 also entitled to same share as that of the properties of the plaintiff and passed the judgment and held that after separate assignment of share, plaintiff and defendant no.2 must be put in possession and further defendant no.1 has to be permanently restrained not to interfere with the possession of such properties that would be allotted to them in drawing of the final decree. The appellant-first defendant filed First appeal before this Court in F.A. No.359/86, questioning the correctness of the findings recorded on the contentious issues in the impugned judgment urging various legal contentions. The learned appellate Judge examined the contentions urged by the learned counsel on behalf of the first defendant and held that the legal contentions urged by him are not acceptable as there was a compromise between the first defendant and second defendant and modified the decree of the trial Court to the extent that first defendant shall also be entitled to the share of defendant no.2. In other words he would be entitled to 5/6 th share in the ancestral properties and 2/3rd share in the separate properties as determined in favour of the second defendant by the trial Court and modified the judgment of the trial Court to that extent and dismissed the appeal with the modification of the judgment and decree of the trial Court. In so far as the assignment of the share of the second defendant is concerned, aggrieved of the said judgment, this Letter Patent Appeal is filed urging following grounds: (i)the ground of attack is that the first appellate judge has not recorded reasons on the issues raised in favour of the plaintiff and second defendant and assigned the share of the properties in her favour without noticing oral evidence adduced by the plaintiff and defendants and the documentary evidence like rent receipts, holding tax, permission from C.D.A. for construction of house, registered sale-deeds, gift deeds etc. According to him the same have not been referred to by the learned Single Judge in the impugned judgment. According to him the same have not been referred to by the learned Single Judge in the impugned judgment. Therefore, the first appellate Court has not analysed the evidence some of which were oral. As the first appellate Court is the continuation of the original suit proceedings, the correctness of the findings recorded on the contentious issues is required to be considered on the basis of evidence available. Therefore, he had contended that the impugned judgment of the first appellate Court is liable to be set aside. (ii)another ground urged is that out of the ancestral property of Kumar Sahoo, father of the plaintiff, certain properties have been given to the plaintiff and second defendant and there is also evidence that certain properties have been purchased in the name of plaintiff. After her marriage, plaintiff sold the same, received consideration amount. Out of the said consideration amount, she has purchased an ambassador car and, therefore, the plaintiff could not have any claim out of the entire suit properties. Ample evidence was there in this regard, but the same has not been taken into consideration by the learned Single Judge while examining the correctness of the findings recorded on the contentious issues by the trial Court. Therefore, the findings recorded in the impugned judgment are erroneous in law. This aspect of the matter has not been taken into consideration by the learned appellate Court, as the learned appellate Court is continuation of the original suit proceeding, it has got the duty to analyse the evidence with a view to find out as to whether the findings recorded are legal and valid. Therefore, the impugned judgment in concurring with the finding of fact on the contentious issues in the judgment impugned before except modifying the judgment only and so far as second defendant’s share is concerned, the findings recorded in the impugned judgment on the contentious issues, is erroneous in law, therefore, the same is liable to be set aside. (iii)Further it is contended by the learned senior counsel that the first appellate Court has not noticed that the trial Court has failed to take into consideration of the facts pleaded by the written statement by the first defendant that the properties bearing khata nos. 41, 76, 79 and 106 had fallen to the share of late Hadibandhu Sahoo as per the partition of 1940. 41, 76, 79 and 106 had fallen to the share of late Hadibandhu Sahoo as per the partition of 1940. But he died giving his properties to the four sons including the father of the plaintiff. It is evident that out of plot no.1088 from ‘A’ schedule an area of A.0.854 decimals fell to the share of plaintiff’s father. Therefore, he sold A.0.420 decimals prior to institution of suit in the trial Court and the learned Single Judge has not taken into consideration this aspect while passing the preliminary decree. Therefore, the finding of the learned Single Judge on this aspect and assigning the shares in the suit schedule properties in favour of the parties in the preliminary decree is bad in law and is liable to be set aside. (iv)Further the specific plea raised by the first defendant in the pleading that in view of Section 23 of the Hindu Succession Act, a dwelling house is not restricted to the house inherited but also includes house constructed by him for the purpose of living in the joint family. Therefore, in view of Section 24 of the Hindu Succession Act, the suit properties particularly the suit house are not liable for partition on the institution of the plaintiff’s suit, as she is one of the daughters of her late father Kumar Sahoo. The above grounds are not at all considered by the learned Single Judge though Section 23 of the Hindu Succession Act does not confer any right to both the plaintiff and second defendant in respect of the house properties. Therefore, asking of share in respect of house properties by them are bad in law, hence the impugned judgment is liable to be set aside. (v)Further it is contended by Mr. Misra, learned senior counsel that the schedule ‘B’; properties, khata nos. 84, 114 and 8 are self acquired properties and similarly schedules ‘C’ to ‘F’ properties are also self acquired properties of late Kumar Sahoo. An extent of A.0.55 decimals of land have been acquired by Kumar Sahoo in the name of his wife Nisamani by virtue of sale deed on 15.2.1953; but the same has been gifted by Nisamani in favour of plaintiff and this aspect has not been taken into consideration by both the learned trial Court as well as learned Single Judge of this Court. Therefore, the findings on the relevant contentious issue, recorded in the impugned judgment, is bad in law which is liable to be set aside. (vi)Further as could be seen from the evidence of D.Ws. 2 to 5 wherein it is stated by them in their statement of evidence that at the time of marriage, defendant no.1 has given sufficient fund by way of cash and other materials so that they will have no claim in the suit properties; but in the present case the plaintiff after taking her share has now instituted the suit claiming further share in respect of the suit schedule properties. This fact though was raised, neither considered by the trial Court nor the learned Single Judge; but the learned trial Judge and learned Single Judge have passed the impugned judgments which are bad in law and cannot be allowed to be sustained and are liable to be set aside. 7.The second defendant also filed cross-objection in this Letter Patent Appeal challenging the impugned judgment modifying the trial Court judgment assigning her share in the suit schedule properties as per the compromise petition dated 28.3.1991 filed in the First Appeal before the learned Single Judge, wherein it is stated that the second defendant will give up her share in the suit properties to defendant no.1 in lieu of schedule properties as mentioned in the compromise petition referred to supra. 8.Being aggrieved of the same, she filed cross-objection on the following grounds namely; (i)The compromise petition dated 28.3.1991 is illegal and voidable and, therefore, the judgment and decree passed by the first appellate Court are liable to be set aside; (ii)compromise petition dated 28.3.1991 filed by the learned Advocates of defendants 1 & 2 is not a compromise petition as described under Order 23, Rule 3, CPC; (iii)since the said compromise petition is not signed by all the parties to suit, therefore, it is not enforceable in the eye of law accepting of the same by the learned Single Judge and modifying the judgment of the trial Court in relation to the share of the defendant no.2 in the suit schedule properties by accepting the compromise petition in respect of the properties mentioned therein is contrary to law laid down by the Hon’ble Supreme Court in the case reported in AIR 1988 SC 400 (Gurpreet Singh v. Chaturbhuj Goel). 9.It is further stated that the compromise petition signed by the Advocate should not have been accepted by the learned Single Judge as the same is neither reduced in writing nor on oath by the Advocates nor any special ‘vakalatnama’ executed by the defendants 1 & 2 to compromise the dispute between them. Neither the first appellate Court has recorded the statement of parties in Court nor all the advocates have signed the compromise petition in the Court. Hence the alleged compromise between the first and second defendant is illegal and the same is not in accordance with the Order 23, Rule 3 CPC. In support of the said contention, reliance is placed by the learned counsel on behalf of second defendant on the decisions in Ramasrey and others v. Deputy Director Consolidation, AIR 1999 SC 1474 and Puspa Devi v. Rajinder Singh and other, AIR 2006 SC 2628 at paragraphs 18, 19 to 20. Further it is contended by the learned counsel for the first defendant that the schedule properties to the compromise petition is in variance with the schedule properties of the suit. Therefore, the alleged compromise petition between the parties, is voidable and the second defendant has prayed to set aside that portion of the impugned judgment in the Letter Patent Appeal filed by the first defendant, as the same is contrary to the Order 23, Rule 3, C.P.C. and the decisions of the Hon’ble Supreme Court. The further contention urged on behalf of second defendant is that the decision reported in Puspa Devi’s case (supra) upon which reliance is placed by learned senior counsel on behalf of the first defendant in support of the acceptance of the compromise petition by the learned Single Judge modifying the judgment of the trial Court is binding on the parties is seriously contested by the learned counsel for the second defendant contending that reliance placed upon the judgment of the Hon’ble Supreme Court referred to supra by the learned senior counsel on behalf of the first defendant is distinguishable to the facts on hand. Therefore, the second defendant counsel has prayed to set aside the modification of the judgment of the trial Court in so far as it relates to her share in respect of the suit schedule properties by allowing cross-objection/appeal. Therefore, the second defendant counsel has prayed to set aside the modification of the judgment of the trial Court in so far as it relates to her share in respect of the suit schedule properties by allowing cross-objection/appeal. 10.On the basis of the factual and rival legal rival contentions urged by the learned counsel on behalf of appellant-Defendant no.1 and the cross-objector-defendant no.2 the plaintiff, the following points would arise for consideration by this Court : (i)whether the findings and reasons recorded on the contentious issues by the learned trial Judge are either erroneous or error in law warranting interference by this Court in exercise of its power ? (ii)whether the first appellate judge in not dealing with the grounds urged by the first defendant by framing appropriate point on the findings recorded on the contentious issues by the learned trial Court, this Court requires interference with the impugned judgment in this appeal though, this Court’s jurisdiction in this Letter Patent Appeal is also analogous to the first appellate Court ? (iii)whether the findings recorded in issue no.5, holding that some of the schedule properties are self-acquired properties of late Kumar Sahoo is erroneous or error in law and liable to be interfered with by this Court in this appeal ? (iv)whether the compromise petition filed by the counsel for defendants 1 & 2 in the First Appeal without special authorization in their favour for signing the compromise petition by defendant no.2, and plaintiff is not a party to the compromise petition, could have been accepted by the learned Single Judge and modified the judgment of the trial Court in so far as the share assigned to the defendant no.2, the same is legal and valid ? (v)what decree the parties are entitled to ? 11.Points 1 to 3 are required to be answered together in favour of the plaintiff and defendant no.2 and against defendant no.1 for the following reasons: The relationship between the parties claiming that the suit schedule properties mentioned in the plaint items ‘A’ to ‘F’ claiming joint and ancestral family properties of the plaintiff and defendants 1 & 2 is based on the partition deed between the father of the plaintiff and defendants and his brothers in the year 1940. The same is not in dispute. The same is not in dispute. To substantiate this, the plaintiff has referred to the partition effected between their late father and his brothers and further undisputedly the trial Court on appreciation of pleadings and evidence on record has recorded a finding of fact on the contentious issues namely, issue nos. 3, 4 & 6. After adverting to the facts and legal evidence, has recorded the finding of fact holding that the schedules ‘A’ to ‘F’ properties are ancestral properties and late Kumar Sahoo has left his share of properties as intestate without any testamentary document. Therefore, the plaintiff and defendant no.2 being the heirs of late Kumar Sahoo, are entitled for seeking the share in the suit schedule properties under Section 6 of the Hindu Succession Act, 1956. Though the learned first appellate Court has not adverted and considered the correctness of the aforesaid findings and reasons recorded on the contentious issues by the learned trial Judge, with reference to the legal grounds urged in the appeal on behalf of first defendant, the same are very carefully examined and considered by this Court with a view to find out as to whether the findings on the aforesaid contentious issues in favour of the plaintiff and the defendant no.2 assigning the respective shares to them in the share of their late father Kumar Sahoo. We are of the view that the findings are neither shown to be erroneous or error in law. No doubt learned first appellate Judge has not adverted to the aforesaid findings in the impugned judgment, even then we are of the considered view that this Court need not interfere with the said finding of fact recorded by the learned trial Judge as the same are supported by valid and cogent reasons and the same is based on proper appreciation of undisputed facts and documentary evidence with regard to the schedule properties ‘A’ to ‘F’ which fell to the share of the father of the parties to the suit in the partition between himself and his brothers and those properties are joint and ancestral family properties. Therefore, the findings recorded on the contentious issues in favour of the plaintiff and defendant no.2 cannot be termed as either erroneous or error in law. Therefore, the findings recorded on the contentious issues in favour of the plaintiff and defendant no.2 cannot be termed as either erroneous or error in law. Further the answer to the contentious issues 2 & 3 regarding the plaintiff and defendant no.2 are not members of the defendant family under the Urban Land Ceiling and Regulation Act, 1976 (now repealed) and, therefore, the partition of urban suit properties are also rightly answered by the trial Court and the correctness of the said finding need not be examined by this Court since the said Act has been repealed by Act 1996. 12.The only question which is raised by the learned senior counsel on behalf of the first defendant is with regard to the correctness of the finding on issue no.5 viz. in holding the properties which are purchased in the name of Kumar Sahoo and in the name of their mother Nisamani Devi are concerned, as he had vehemently contended before the learned Single Judge in the First Appeal that they are erroneous in law. Therefore, the findings recorded on the above issue, is contrary to the legal evidence on record. Hence this aspect of the matter has not been taken into consideration by the learned First Appellate Judge. As the First Appellate Court’s proceedings are continuation of the original suit proceedings, therefore, he was required to apply his mind consciously to the facts, evidence and legal grounds urged with a view to find out as to whether the findings recorded on the said contentious issue no.5 by the learned trial Judge are legal and valid. The findings of the learned trial Judge that the properties are self-acquired properties of late Kumar Sahoo, is not correct. It is further contended that neither late Kumar Sahoo nor his wife had separate source of income to acquire in the name of their father and mother, out of the income portion from the joint family properties, those properties are purchased in their names and the same were put to the hotchpot of joint family schedule properties and further selling these properties to the plaintiff and defendant no.2 without receiving consideration. Therefore, the said sale of the properties could have been treated as the share of plaintiff and defendant no.2 for which the finding recorded on the said contentious issue is erroneous and liable to be set aside. Therefore, the said sale of the properties could have been treated as the share of plaintiff and defendant no.2 for which the finding recorded on the said contentious issue is erroneous and liable to be set aside. The aforesaid contention urged on behalf of the first defendant cannot be accepted by us for the following reasons: The trial Court being the fact finding Court, has applied its mind to the pleadings and analysed the evidence on record by applying its mind consciously and there is evidence of the plaintiff and defendant no.2 with regard to the properties that they purchased from their father which were in his name and also in the name of his wife for valid consideration and further evidence on record is that late Kumar Sahoo has his own independent business. Out of the profits earned in the business, he has purchased properties in his name and in the name of his wife. Further on the basis of settlement made out of the properties by their mother, the same have been accepted and acted upon in favour of the plaintiff and defendants in the year 1985 by them. Therefore, it is not open for the defendant no.1 to question the ownership of his mother having accepted the said settlement deed of properties of the year 1985 in relation to the properties stood in the name of the mother, finding recorded in the impugned judgment of the trial Court on the issue no.5 is based on proper appreciation of legal evidence on record and further categorical finding is recorded by the learned trial Judge at paragraph-15 of the judgment in answer to issue no.5, stating that defendant no.1 did not at all controvert that some of the plaint schedule properties described as they are not the self-acquired properties of their late father Kumar Sahoo. Further finding recorded by the learned trial Judge is that no doubt in the written statement of defendant no.1 he had asserted that some of the properties have either been granted or lost due to expanding of river bed, but there is no clear cut proof of extent of such land was lost for expansion of the river bed. Further finding recorded by the learned trial Judge is that no doubt in the written statement of defendant no.1 he had asserted that some of the properties have either been granted or lost due to expanding of river bed, but there is no clear cut proof of extent of such land was lost for expansion of the river bed. Therefore, the trial Judge further observed that the evidence of D.W.2 as referred to at paragraph-14 (it should be paragraph-17) in the judgment, wherein he has admitted that some of the suit properties have been acquired by late Kumar Sahoo during his life time. Added to the evidence of D.W.2, the documents produced in the evidence of second defendant such as sale deeds under which their late father Kumar Sahoo purchased some of the suit properties vide Exts. 3 to 3-D series and Ext.5, 4, 1 out of 5-1. Settlement Deed under which mother Nisamani Devi gifted away properties to her son and daughters and wife Nisamani Dei out of herself and her husband’s self earning. Therefore, it has to be presumed that the said properties were acquired in her name by her husband late Kumar Sahoo were his self-acquired properties and further stated that the settlement deed properties had been described in details while answering the issue no.8 by the trial Judge in his judgment. The learned trial Judge has recorded the findings of fact in answer to the contentious issue no.5 stating, whether defendant no.1 share granted to him, is liable to be adjusted out of his share, in the partition decree and since the properties thereon had gone to the third parties nor being available for partition, that can be safely quoted out of the suit properties. On the basis of the pleadings and evidence, on record the learned trial Judge has rightly came to the conclusion on the contentious issue and held that onus is on the defendant no.1 that some of the properties in the name of his father and mother are not their self-acquired properties. On the basis of the pleadings and evidence, on record the learned trial Judge has rightly came to the conclusion on the contentious issue and held that onus is on the defendant no.1 that some of the properties in the name of his father and mother are not their self-acquired properties. But on the other hand defendant no.2, who has asserted that the said properties are self-acquired properties of her parents has proved the same by producing corresponding sale deeds and some of the admission made by defendant no.1 in his evidence in this regard, is considered by the learned trial Judge and rightly held that some of the properties covered in the sale deeds 3 to 4 eight documents are only self-acquired properties of late Kumar Sahoo and the rest are ancestral properties. Accordingly the finding on the said issue in favour of plaintiff and defendant no.2 by the learned trial Judge is based on pleadings and legal evidence, and, therefore, the said finding recorded by him on the aforesaid contentions cannot be termed as either erroneous or error in law, in view of the pleadings that the said properties were purchased out of the self-earnings of late Kumar Sahoo in his business and in the absence of evidence produced by the defendant no.1 to show that those properties were purchased from the income of the ancestral properties in the name of their father and those properties were put to the hotchpot of the joint family properties. Therefore, they are also the joint family properties and hence they are not self-acquired properties of their father, is rightly not accepted by the trial Judge by recording valid and cogent reasons in support of the conclusion arrived and finding recorded on the contentious issue no.5 in this judgment. Therefore, non-consideration of this aspect of the matter by the first appellate Court has not vitiated the impugned judgment. For the above-said reasons, there is no merit in the contention urged on behalf of first defendant but on the other hand the reasons recorded on the contentious issue no.5 by the trial Judge is perfectly legal and valid. Accordingly the point Nos. I & II which are framed by this Court in this case are answered in favour of plaintiff and defendant no.2 and against defendant no.1-appellant. Accordingly the point Nos. I & II which are framed by this Court in this case are answered in favour of plaintiff and defendant no.2 and against defendant no.1-appellant. Accordingly the points 1 & 2 answered against defendant no.1 in favour of the plaintiff and defendant no.2. 13.The cross-appeal-AHO No.133 of 2000 is required to be answered for the following reasons: The appeal was filed by defendant no.1 before this Court in this Appeal challenging the correctness of the decision of the learned Single Judge in F.A. No.359/96 on the basis of the compromise petition dated 28.3.1991, which is filed and accepted by him is not signed by defendant no.2 and the same is signed by her advocate and not signed by the plaintiff and her counsel. Therefore, it is urged that the same is not legal compromise as provided under Order 23, Rule 3, CPC and on behalf of defendant no.2 her advocate could not have signed the compromise petition as she has not executed special ‘vakalatnama’ giving the authorization in favour of her lawyer to compromise the matter between defendant no.1 and 2 in the First Appeal. Therefore, First Appellate Judge should not have received the compromise petition and accepted the same. The acceptance of the compromise petition by the learned Single Judge should have entered between the parties including the plaintiff. In support of the said legal contention, reliance is placed by the learned counsel on behalf of defendant no.2 on the decisions of the apex Court in Ramasrey & Puspa Devi (supra). The compromise petition is in variance to the schedule properties of the suit and, therefore, it is voidable. The compromise was neither recorded by the first appellate Court at the time of filing compromise petition in writing, nor the parties were present in the Court nor signed the petition in Court. Therefore, the alleged compromise cannot be termed as compromise between the parties in relation to the subject matter covered therein as the same is illegal for the reason that it is opposed to Order 23, Rule 3, CPC. Hence the learned Single Judge could not have accepted the same. Therefore, the alleged compromise cannot be termed as compromise between the parties in relation to the subject matter covered therein as the same is illegal for the reason that it is opposed to Order 23, Rule 3, CPC. Hence the learned Single Judge could not have accepted the same. In support of this contention, learned Single Judge had rightly placed reliance upon the decisions of the Hon’ble Supreme Court in the case of Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400 ; and of this Court in the case of Sanyasi Jena and others v. Mina Jena and others, AIR 1984 Orissa 213. Further the reliance placed by the learned counsel for the defendant no.1 upon the judgment of Puspa Devi (supra) is distinguished by defendant no.2 counsel stating that compromise petition is being typed in English. Further the same is not signed by defendant no.2. Defendant no.1 with a view to deprive allotment of share assigned in favour of defendant no.2 by the trial Court in respect of the suit schedule properties in the absence of signing the compromise petition by defendant no.2 and there is no special ‘vakalatnama’ executed in favour of her lawyer, the said compromise petition is unlawful and the same could not have been accepted by the first appellate Court in the impugned judgment and modified the trial Court judgment. Therefore, the cross-objection/appeal filed by defendant no.2 has to be allowed by setting aside the compromise recorded by the first appellate Court in the impugned judgment by modifying trial Court judgment in relation to the share of the defendant no.2 allotted in respect of the suit schedule properties. Having set aside the said compromise, as recorded in the impugned judgment of the First Appellate Court, the trial Court judgment is restored with regard to the share assigned by him in favour in of defendant no.2 in respect of suit schedule properties. Accordingly the cross-objection of the second defendant is allowed by answering the aforesaid point no.(iii) in her favour. 14.In so far as the Misc. Cases are concerned, Misc. Accordingly the cross-objection of the second defendant is allowed by answering the aforesaid point no.(iii) in her favour. 14.In so far as the Misc. Cases are concerned, Misc. Case filed by both the plaintiff and legal heirs of deceased first defendant, are disposed of for the following reasons: After the decree and judgment is passed in this appeal by order dated 12.12.1991, defendant no.1 was appointed as receiver in respect of suit properties A. 60.79 decimals on a condition that he shall deposit Rs.12,000/- per month. The defendant no.1 Prafulla Kumar Sahoo died on 19.1.2005 (his L.Rs. who came on record have been collecting rent from the tenants from the household property and they are depositing Rs.12,000/- per month in A/c. No.10329409788 in the State Bank of India. The said account is still in the name of Prasanna Kumar Sahoo. That amount must be treated as the amount deposited towards the rent collected by him from the house schedule properties received from the tenants and that amount to Rs.8,76,000/- which is in the account of the aforesaid bank should be deposited in the trial Court to facilitate the parties to draw the same on the basis of shares assigned in their favour as this Court has affirmed the judgment and decree of the trial Court. Further it is stated that defendant no.1, plaintiff-respondent no.1 has given offer to deposit Rs.45,000/- per month towards income from rent and other sources till conclusion of the final decree proceedings. The very same offer is given by the L.Rs. of the defendant no.1-appellant. Therefore, the said offer of them is accepted as their father was appointed as receiver during pendency of this appeal. They are permitted to deposit the same from the month of April, 2011 till final decree proceedings are drawn. The parties are entitled to draw such amount that would be deposited before the trial Court. The said amount shall be disbursed by the trial Court according to their shares assigned in the trial Court judgment. They are permitted to deposit the same from the month of April, 2011 till final decree proceedings are drawn. The parties are entitled to draw such amount that would be deposited before the trial Court. The said amount shall be disbursed by the trial Court according to their shares assigned in the trial Court judgment. If the deposit amount is not made within a month, by the appellants (L.R.s. of defendant no.1) will lose their right as receivers and they are also not entitled to deposit the said amount during the pendency of the final decree proceedings, in such an event the plaintiff is at liberty to deposit the amount offered by her in the Miscellaneous petition on the aforesaid terms and further if for the above reason the plaintiff-respondent no.1 is required to deposit the same, the L.Rs. of defendant no.1 must produce the upto date receipts of electricity charges and public dues and further direction is issued to Electricity Department, Water Supply Department and other local authority to accept the current dues from her from the date she is appointed in the place of the L.Rs. of the deceased defendant if they commit default in complying with this order. With the above said directions, Misc. Case filed by the plaintiff disposed of. For the reasons stated supra, the appeal is dismissed. The Cross-objection is allowed and the judgment and decree of the trial Court are restored. We direct the trial Court to draw the final decree within six months from the date of receipt of a copy of this judgment. The parties to the suit are entitled to the share in the suit schedule properties as assigned in the judgment of the trial Court. B.N. MAHAPATRA, J.I agree. Order accordingly.