JUDGMENT : ” The plaintiff-appellant has filed the present appeal aggrieved by the judgment and decree dated 30-5-2008 and 15-5-2008 respectively passed by the Addl. District Judge, FTC-III, Darbhanga in T.A. No. 03 of 2007 reversing the judgment and decree dated 22-11-2006 and 4-12-2006 respectively passed by learned Munsif-II, Darbhanga in T.S. No. 25 of 2004. 2. In the suit, the plaintiff prayed for declaration of title and confirmation of possession over the Schedule I land and further for a declaration that the sale-deed dated 17-11-1997 (Ext. 2/b) executed by the respondent-defendant 2nd set in favour of respondent-defendant 1st set is forged and fabricated conveying no title besides other consequential relief(s). 3. The case of the plaintiff, in short, is that one Bauge Lal Karn died leaving behind five sons namely Balbhadra Lal Karn, Balkeshwar Lal Karn, Brahmadeo Lal Karn, Jugal Lal Karn and Kishori Lal Karn. All the brothers jointly purchased 06 kathas of homestated land of khata No. 102, old khesra No. 1873/2002 from one Most. Domni Devi in the year 1930 which was subsequently partitioned in equal share amongst them. There has been inter se sale between the brothers. The plaintiff and his brother Kusheshwar Lal Karn owned and possessed 01 katha 04 dhurs of land and by virtue of family partition dated 23-5-1990 (Ext. 1) portion of the land of khesra No. 145 (carved out of khesra No. 1873) came in the share of Ganpati Lal Karn and remaining land in khesra No. 1456 and 1457 (carved out from old khesra No. 1873) fell to the share of the plaintiff and his brother Kusheshwar Lal Karn. Again in a family partition effected on 1-7-1993 the plaintiff was given 15 dhurs of land consisting of house and 8½ dhurs of vacant land, whereas Ganpati Lal was given 17 dhurs of land from extreme east and similarly defendant 2nd party was allotted 15 dhurs from west having house and 8½ dhurs vacant land. The defendant 2nd party (respondent herein) sold 01 katha 3½ dhur of land in keshra No. 1456 and 1457 to defendant-respondent 1st party by a registered sale-deed dated 17-11-1997 (Ext. 2/b) which was in excess of the share and hence the suit. The defendant-respondent contested the claim. The defendant 2nd party (respondent herein) sold 01 katha 3½ dhur of land in keshra No. 1456 and 1457 to defendant-respondent 1st party by a registered sale-deed dated 17-11-1997 (Ext. 2/b) which was in excess of the share and hence the suit. The defendant-respondent contested the claim. It was stated, inter alia, that the suit ought to have been filed seeking partition stating complete genealogy of the family which has not been done inasmuch all the parties necessary to suit have not been impleaded. The pleadings in the plaint did not disclose the entire instance(s) of transfer(s) effected in the meanwhile respecting the suit land. The partition on the basis of ' Panchnama” between Ganpati Lal Karn, Kusheshwar Lal Karn and the plaintiff was denied. In substance, they supported the validity of the sale deed dated 17-11-1997 (Ext. 2/b) which was for consideration conveying title thereunder to the purchaser. The defendant-respondent No. 6 filed a separate written statement and disputed the claim of the plaintiff. The trial Court considering the rival pleadings framed diverse issues and evaluated the evidence on record adduced by both the parties. Having done so, the suit was decreed and all relief(s) were granted. Aggrieved thereby the defendant(s) 1st party filed appeal vide T.A. No. 03 of 2007. The learned lower appellate Court re-appraised the evidence in the light of the pleadings of the parties and submissions made in support of the appeal and upheld the validity of the sale-deed dated 17-11-1997 (Ext. 2/b) but for his own reason(s). The appellate Court recorded the following finding(s) in paragraph 23 :” ' Learned lawyer for the plaintiff has argued that Ext. 2(b) is forged and fabricated and without consideration and hence on perusal of Ext. 2(b) it transpires that the scribe of the deed has committed a clerical error which is not of such nature so as to render the entire deed as inoperative or false, forged and fabricated because in Ext.-B and Ext.-C the plaintiff himself has admitted execution of sale-deed by Rukminidevi and her sons in favour of the appellants. I do not see any reason to concur with the findings of the learned lower Court in respect of issue No. 5 which appears to have been decided incorrectly by ignoring the facts mentioned in Ext. 1/A and also by ignoring the vague and contrary facts pleaded by the plaintiff. I do not see any reason to concur with the findings of the learned lower Court in respect of issue No. 5 which appears to have been decided incorrectly by ignoring the facts mentioned in Ext. 1/A and also by ignoring the vague and contrary facts pleaded by the plaintiff. Even if it be presumed that family partition was effected, the plaintiff has totally failed to prove his correct share in Khesra No. 1873/2002 and the location of the same in the concerned Khesra Ext. 2(b) does not appear in any manner as forged, fabricated, inoperative and without consideration. Ext. 1/A was allegedly effected after Ext. 1 and allegedly brought into existence in respect of six katha of land and Ext. 2 and Ext. 2(b) only relate to 15 dhur land and Ext. 2(b) relates to one katha and 3½ dhur land, therefore it cannot be inferred that Ext. 2(b) is in contravention with Ext. 1(A) and contrary to the boundary of Ext. 2 and Ext. 2A. Issue No. 5 is decided accordingly against the pleadings of the plaintiff.' 4. The appellate Court found that the suit was hit by Art. 59 of the Limitation Act and also barred by principles of estoppel, waiver and acquiescence. The pleadings in plaint were vague and incorrect. According, the appeal was allowed and the suit was dismissed. Hence the appeal. 5. The following substantial questions of law (after recast) have been formulated for consideration and adjudication :” 1. Whether the learned Court of appeal below while reversing the judgment and decree of the learned trial Court was justified in ignoring that since the suit was within the ambit of S. 4 of the Partition Act, the plaintiff was legally entitled to a share in the dwelling house? 2. Whether the learned lower appellate Court committed a serious illegality in misconstruing the sale-deed dated 17-11-1997 (Ext. 2/b) in order to hold that the vendor of the defendant(s) had acquired title in respect of 15 dhurs of the suit land and such misconstruction of the document by the learned appellate Court has vitiated the finding(s) of the Court.' 6. Heard Mr. Suresh Prasad for the appellant(s) and Mr. Ashok Kumar who appeared on behalf of the contesting respondent(s). Re: substantial question of law No. 1 :” 7. Heard Mr. Suresh Prasad for the appellant(s) and Mr. Ashok Kumar who appeared on behalf of the contesting respondent(s). Re: substantial question of law No. 1 :” 7. It has been contended that the plaintiff being the co-sharer (brother) of respondent-defendant No. 2 was entitled to re-conveyance of the suit land from defendant No. 1 as the plaintiff was the only surviving brother. The law enjoins such right in the co-sharer. The appellant relied in this regard on Ss. 3 and 4 of the Partition Act. Arguing further it has been contended relying on AIR 1973 SC 643 (R. Ramamurthi v. V. Rajeswararao) that the Court can grant such relief at any stage of the suit and a formal application is not required therefor. The appellate Court has, therefore, completely erred in not exercising its jurisdiction as required by law rendering the judgment under appeal wholly unsustainable in law. 8. Per contra, Mr. Ashok Kumar learned counsel for defendant-respondent No. 1 submitted that without there being any pleading no evidence can be allowed to be adduced. In claiming the right, title and interest over the suit land the plaintiff has denied any unity of title or co-sharership with the defendant. He drew attention of the Court to the statement made in para 9 of the plaint wherein the plaintiff denied the jointness with the defendant. It has further been submitted in the plaint nowhere it has been stated specifically that the suit property contained dwelling house. It is also not so reflected from Exts. 2, 2/a and 2/b which is/are the sale document(s) in favour of defendant No. 1. 9. Upon a conjoint reading of Ss. 3 and 4 of the Partition Act, it appears that the same apply to a suit for partition. Section 4 thereof deals with a situation where the transferee of the share in a dwelling house seeks partition. The provisions thus recognize the right of pre-emption of the co-sharer. 10. In (1996) 11 SCC 446 : ( AIR 1997 SC 471 ) (Ghantesher Ghosh v. Madan Mohan Ghosh), the Apex Court in paragraph Nos. 16 and 17 held as under :” ' 16. At this stage, we may note one apprehension voiced by Dr. Ghosh. The provisions thus recognize the right of pre-emption of the co-sharer. 10. In (1996) 11 SCC 446 : ( AIR 1997 SC 471 ) (Ghantesher Ghosh v. Madan Mohan Ghosh), the Apex Court in paragraph Nos. 16 and 17 held as under :” ' 16. At this stage, we may note one apprehension voiced by Dr. Ghosh. It was submitted that if this view regarding applicability of S. 4 is upheld, then it may very well happen that even after the decree for partition is executed by one of the erstwhile co-owners and his transferee and the stranger transferee is actually put in possession of his share by division on spor by metes and bounds, and thereafter if such a transferee transfers his separate share in the dwelling house which has been actually handed over to him, the co-owner may still file an application under S. of the Act. This apprehension is totally misconceived. Section 4 in its applicability, as discussed above, will cover all stages of litigation in a partition suit from its inception till its termination not only by the final decree for partition but also by its complete satisfaction and discharge through the assistance of the executing Court; once that happens the Court itself becomes functus officio and the litigation will come to an end and the parties concerned thereafter will occupy the respective portions of the erstwhile dwelling house as full owners of their portions. The separated part of the dwelling house in possession of such stranger transferee cannot then be treated as a part and parcel of the dwelling house belonging to an undivided family and at that stage the dwelling house qua such a stranger would cease to belong to any joint family and it would belong to different owners occupying their respective portions in a composite building. The moment the integrity of common dwelling house belonging to an undivided family is broken by the execution of the final partition decree through the intervention of the Court and the proceedings are ended, there would remain no scope for play of S. 4 of the Act as there would be no subject-matter of a common dwelling house belonging to an undivided family on which it could operate.' 17. As a result of the aforesaid discussion, it must be held that S. 4 of the Act can validly be pressed in service by any of the co-owners of the dwelling house belonging to the undivided family pending the suit for partition till final decree is passed and thereafter even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has not been fully executed and satisfied by putting the shareholders in actual possession of their respective shares. Beyond that stage, however, S. 4 will go out of commission.' 11. On a consideration of the rival submissions of the parties and the law laid down in Ghantesher Ghosh ( AIR 1997 SC 471 ) (supra), it appears that in a case where a co-sharer transfer his or her undivided or divided share in the dwelling house and the transferee seeks partition the defendant or other co-sharer shall have a right to re-conveyance of such property in his/her favour until the litigation is finally terminated by execution thereof. In the present case the situation is entirely different. This is not a suit for partition. The plaintiff has categorically denied unity of title in the suit land by denying unity of title in the suit land by denying jointness in the suit property with the defendant. Further, it is not obvious from the records particularly the exhibits on which the defendant has relied that the suit land contained any dwelling house/structure. Counsel for the appellant(s) has only been able to show that in one of the deeds of conveyance the suit land has been described as homestead. In view of above, the contention of the appellant is not sustainable in law. The substantial question of law under reference is, therefore, answered against the plaintiff/appellant. Re : substantial question of law No. 2 :” 12. Learned counsel for the appellant has strenuously argued that the lower appellate Court committed a serious illegality in misconstruing the sale-deed dated 17-11-1997 (Ext. 2/b) in order to hold that the vendor of the defendant had acquired title in respect of 15 dhurs of the suit land. Such conclusion on misconstruction of the document has vitiated the judgment under appeal. In order to support his contention, he has relied on AIR 2007 SC 2306 (P. Chandrasekharan v. S. Kanakarajan). 13. Vide Ext. 2/b) in order to hold that the vendor of the defendant had acquired title in respect of 15 dhurs of the suit land. Such conclusion on misconstruction of the document has vitiated the judgment under appeal. In order to support his contention, he has relied on AIR 2007 SC 2306 (P. Chandrasekharan v. S. Kanakarajan). 13. Vide Ext. 2/b the sale-deed dated 17-11-1997 01 katha 3½ of the land was conveyed by defendant No. 2 (brother of the plaintiff) to defendant No. 1. The aforesaid sale-deed recites the manner in which the land was acquired by the vendor. In doing so it was recited that the subject land was acquired vide sale-deed 10-7-1975 (Ext. 2) whereby Kusheswar Lal (brother of the plaintiff) sold in favour of Ganpati Lal (uncle) an area of 15 dhurs. The submission is therefore that if the vendor had purchased only 15 dhurs by Ext. 2 then he could not have conveyed 01 katha 3½ of land in favour of defendant No. 1. The Court of appeal below has either overlooked or misconstrued the sale-deed and thereby erroneously held otherwise. No correction in the recital was sought or made by the vendor by executing a deed of correction. 14. Learned counsel for the defendants-respondent, on the other hand, submitted that evidence on record do indicate that by virtue of a Panchnama Batwara on 22-3-1990 (Ext. 1) between the plaintiff-appellant, the defendant No. 2 and defendant No. 6 (Ganpati Lal Karn) the land came in possession of the defendant No. 1. By sale-deed dated 24-5-1990 (Ext. 2/b) Ganpati Lal Karn (defendant No. 6) transferred 15 dhurs of land to Kusheshwar Lal. It is thus manifest that the plaintiff as well as defendant No. 2 each got 23½ dhurs of land whereas Ganpati Lal Karn (defendant No. 6) got 17 dhurs plus the land of R.S.P. No. 1455. Such Panchnama Batwara having been accepted defendant No. 2 sold the suit land in favour of the contesting defendant No. 1. The vendor Kusheshwar Lal was rightly found having acquired the land through the sale-deed 24-5-1990 (Ext. 2/a) and by another sale-deed (Ext. 2/b) he transferred his all rights therein. In other words, the vendor extinguished his all right title and possession in favour of the purchaser against consideration which was a sale in terms of S. 54 of the T.P. Act. Arguing further Mr. 2/a) and by another sale-deed (Ext. 2/b) he transferred his all rights therein. In other words, the vendor extinguished his all right title and possession in favour of the purchaser against consideration which was a sale in terms of S. 54 of the T.P. Act. Arguing further Mr. Kumar contended that wrong mentioning of the sale-deed through which the vendor acquired right, title and interest would not affect the title of the vendor if it was otherwise within his/their right(s). All in all, these issues/questions relate to findings of facts based on appreciation of evidence on record and cannot constitute a substantial question of law meriting interference therewith by this Court in exercise of its jurisdiction under S. 100 of the C.P.C. 15. There is no dispute as argued by the appellant(s) that misconstruction or misinterpretation of a relevant document by the Court below would constitute a substantial question of law as pointed out by the Apex Court in P. Chandrasekharan ( AIR 2007 SC 2306 ) (supra) but on close scrutiny of the said case is appears that what is of paramount importance is that the decree if passed should be executable. If the description of land acquired by the vendor does not tally with the details of land vended by him then the Court would look to the identity of land. If the identity is discernible by the boundary of land vended or otherwise then the same shall be executable by the Court. Nothing has been shown to this Court that any ambiguity in the identity of the suit land existed. Secondly, from the evidence and other pleadings on record as evaluated by the first appellate Court it appears that the manner in which the vendor of the suit land acquired title has been fully discussed. So long these findings of fact exist it would be inappropriate on the part of this Court to hold otherwise even if the same to some extent is erroneous. If the Court below found title of the suit land flowing to the vendor of the defendant No. 1 by virtue of the findings recorded on appreciation of relevant facts then the Court shall presume the same to be correct until and unless they are also shown to be perverse. The appellate Court while considering the challenge of tghe plaintiff to the legality of the sale deed (Ex. The appellate Court while considering the challenge of tghe plaintiff to the legality of the sale deed (Ex. 2/b) discussed and evaluated the evidence in paragraph 23 thereof as under :” ' 23. On perusal of Ext. 2(b) which is sale- deed dated 17-11-1997 execute by Rukminidevi and his sons in favour of the appellants it transpires that plaintiff has been shown in the northern boundary. The sale- deed is in respect of one katha and 3½ dhur. Ext. 2 and Ext. 2A are in respect of 15 dhur land and plaintiff has been shown in the southern boundary. On perusal of Ext. 1/A the plaintiff has been shown in northern boundary in schedule four in respect of 19 dhur and also shown in northern boundary in schedule three and in western boundary in schedule one with Vinod Kumar. In any manner the plaintiff has not been able to establish his correct share in khesra No. 1873/2002. Learned lawyer for the plaintiff has argued that Ext. 2(b) is forged and fabricated and without consideration and hence on perusal of Ext. 2(b) it transpires that the scribe of the deed has committed a clerical error which is not of such nature so as to render the entire deed as inoperative or false, forged and fabricated because in Ext. B and Ext. C the plaintiff himself has admitted execution of sale-deed by Rukminidevi and her sons in favour of the appellants. I do not see any reason to concur with the findings of the learned lower Court in respect of issue No. 5 which appears to have been decided incorrectly by ignoring the facts mentioned in Ext. 1/A and also by ignoring the vague and contrary facts pleaded by the plaintiff. Even if it be presumed that family partition was effected, the plaintiff has totally failed to prove his correct share in khesra No. 1873/2002 and the location of the same in the concerned khesra Ext. 2(b) does not apear in any manner as forged, fabricated, inoperative and without consideration. Ext. 1/A was allegedly effected after Ext. 1 and allegedly brought into existence in respect of six katha of land and Ext. 2 and Ext. 2(a) only relate to 15 dhur land and Ext. 2(b) relates to one katha and 3½ dhur land, therefore it cannot be inferred that Ext. 2(b) is in contravention with Ext. Ext. 1/A was allegedly effected after Ext. 1 and allegedly brought into existence in respect of six katha of land and Ext. 2 and Ext. 2(a) only relate to 15 dhur land and Ext. 2(b) relates to one katha and 3½ dhur land, therefore it cannot be inferred that Ext. 2(b) is in contravention with Ext. 1(A) and contrary to the boundary of Ext. 2 and Ext. 2A. Issue No. 5 is decided accordingly against the pleadings of the plaintiff.' 16. It is thus evident that the appellate Court on reappraisal of evidence has recorded the finding of fact upholding the legality of the sale-deed. From the submissions on behalf of the appellant, this Court is not persuaded to conclude that the findings of fact by the appellate Court below are illegal or otherwise perverse. On these premises and discussions, this substantial question of law is also answered against the appellant. 17. In the result, this Court finds no merit in this appeal. It is accordingly dismissed. There shall be no order as to cost(s). Appeal dismissed.