Suman Shyam, J.(Oral) – This Second Appeal has been preferred against the judgment and decree dated 02.04.2004 passed by the Civil Judge (Senior Division) No. 1, Silchar in Title Appeal No. 42/2002 dismissing the said appeal and affirming the judgment and decree dated 26.08.2002 passed by the Civil Judge (Junior Division) No. 1, Silchar in Title Suit No. 104/2001. 2. The facts of the case in brief is that the plaintiff had entered into the suit land about 30 years back as a monthly tenant under the defendant on condition of payment of nominal rent and had thereafter, started his business as cloth merchant in a kutcha shed, constructed by the defendant. Thereafter, the defendant along with her son Rajkumar Haloai transferred the jote right on the suit land in favour of the plaintiffs by executing an unregistered deed on 28.09.1994, on the basis of which the plaintiffs took the suit land from the owners, who had also recognised them as tenant by accepting rents while issuing receipts. Thereafter, by means of a registered deed of purchase dated 03.09.1999 executed by Kamakhya Dasgupta, one of the legal heirs of late Paresh Das Gupta, the plaintiff had purchased the plot of land measuring 6 chataks covered by dag No. 5 of 2nd R.S. Patta No. 4 under Lakhipur Mouza- Lalong in the district of Cachar and thereafter, acquired maliki right in respect of the said land. It is also the case of the plaintiff that by virtue of the aforementioned purchase on payment of valuable construction, the plaintiff had also got delivery of khas possession of the land on 03.09.1999, i.e., on the date of execution of the sale deed itself and on such basis, the plaintiff had acquired clear marketable title and interest over the suit land being in possession thereof. 3. It is also the case of the plaintiffs that in 1998 there was a fire which gutted many houses in that area including the house under occupation of the plaintiffs standing over the suit land. After the fire, the suit land remained vacant and under the possession of the plaintiffs for sometime. On the basis of their maliki right acquired by the purchase of the land from its owner Kamakhya Dasgupta, the plaintiff also constructed a house with C.I. Sheet roofing fitted with wooden post with iron angle and walls and covered by Tarja fencing etc. On the basis of their maliki right acquired by the purchase of the land from its owner Kamakhya Dasgupta, the plaintiff also constructed a house with C.I. Sheet roofing fitted with wooden post with iron angle and walls and covered by Tarja fencing etc. On 09.05.2001, the defendant had trespassed into the suit land and forcibly dispossessed the plaintiffs from the said land which has given rise to the cause of action for filing the suit. The plaintiffs has, therefore, prayed for a decree declaring their right, title and interest over the suit schedule land and house standing thereupon, for recovery of khas possession by evicting the defendant from the suit land, for a decree of permanent injunction restraining the defendants from interfering with the possession of the suit land by the plaintiffs and also for other consequential reliefs. 4. The defendant contested the suit filed by the plaintiffs by filing her written statement interalia contending that the suit was not maintainable in its form and that there was no cause of action for filing the suit. The contesting defendant took the plea that the suit was bad for non-joinder of parties and that the plaintiffs were not entitled to get any relief without a suit for partition. The defendant's case in brief was that her husband Hakim Chand Haloai and Ramkokar Haloai were the jot right holders of 6 kathas 3 chataks of land under the original owner Binoy Bhusan Dasgupta and others. A Katcha kathian No. 38 was issued in the name of both these person and after the death of Hakim Chand Haloai, his wife i.e., the defendant has been possessing her share of land i.e., 3 kathas 1 chatak and 10 gondas by constructing the house thereupon. It is the further case of the defendant that the plaintiff No. 1 was the monthly tenant under the defendant in the shop house and the said plaintiff became a defaulter in payment of the monthly rent as a result of which, the defendant had also lodged complaint before the Poilapool Gaon Panchayat. At the intervention of the said Gaon Panchayat, the plaintiff No. 1 was found defaulter and was asked to acquire all the arrear rents. At the intervention of the said Gaon Panchayat, the plaintiff No. 1 was found defaulter and was asked to acquire all the arrear rents. However, in the meantime, all the shop houses of the defendant was gutted in fire in the year 1998 and taking advantage of the said possession, the defendant took possession over the said land and constructed permanent structure thereon without any objection from anybody and in this manner the suit patta land and the houses standing thereupon have been under the possession of the defendant since the year 1998. The defendant had also categorically denied having executed any deed in favour of the plaintiff No. 1, transferring the jot right in respect of the suit land. 5. The defendant had further claimed that she had purchased maliki right of 14 chataks in dag No. 4 and 1 katha land in dag No. 5 of 2nd R.S. Patta No. 4 from one of the co-owners, viz, Sri Salil Dasgupta by a registered deed of sale dated 30.12.1999 on payment of valuable consideration of Rs. 15,000/- and that the said 1 katha 14 chataks land situated on the northern side of the homestead land of the defendant. In the three shop houses standing thereupon, the middle room had been taken by Krishna Prasad Koira on monthly rental basis and the eastern and western rooms were under the possession of the defendant. It is also alleged by the defendant that the plaintiffs in order to dispossess the defendant from the land, had initiated proceedings under Section 144 Cr.P.C. Such proceeding having been resulted in dismissal, the suit filed by the plaintiff is without any basis and hence, liable to be dismissed. 6. On the basis of the pleadings, the learned Trial Court framed as many as 6 (six) issues, which are as follows:- (1) Is there any cause of action for this suit? (2) Is the suit maintainable? (3) Whether the suit is bad for non-jointer of parties? (4) Whether the plaintiff has got any right, title and interest over the suit land (Schedule 1 land of the plaint) and the house standing thereon? (5) Whether the plaintiff is entitled to get any decree, as prayed for? (6) To what other relief/reliefs, the plaintiff is entitled?" The plaintiff side examined as many as 5 witnesses and exhibited some documents. (5) Whether the plaintiff is entitled to get any decree, as prayed for? (6) To what other relief/reliefs, the plaintiff is entitled?" The plaintiff side examined as many as 5 witnesses and exhibited some documents. Whereas, the defendant examined herself as a witness besides two other witnesses. The defendant side had also exhibited documents in support of their case. 7. Upon considering the pleadings as well as the material evidence on record, the learned trial Court answered the issue Nos. 4 and 5 against the plaintiff and consequently the plaintiff suit stood dismissed. 8. Being aggrieved by the judgment and decree dated 26.08.2002 passed by the learned trial Court in Title Suit No. 104/2001 dismissing the suit of the plaintiff, they preferred an appeal before the Civil Judge (Senior Division) Silchar being Title Appeal No. 42/2002. By the judgment and decreed dated 02.04.2002, the learned First Appellate Court dismissed the appeal filed by the plaintiff by affirming the judgment and decree passed by the trial Court. 9. Being aggrieved by such concurrent judgment and decree passed by the Courts below, the plaintiff as appellant has preferred the second appeal which had been admitted by this Court by the order dated 14.10.2004 to be heard on the following substantial questions of law:- "(1) Whether the learned Courts below committed error in not considering Ext. 1 collateral purpose viz nature of possession of the plaintiffs after the date of execution of Ext.1 (2) Whether the learned Courts below committed error of law in holding that the plaintiffs did not acquire maliki right over the land which was purchased by them vide Ext.2 the sale deed dated 02.09.99, merely because there was no partition among the co-sharers? (3) Whether the learned Courts below were right in holding that on the burning of the house over the suit land the tenancy, right of the plaintiffs under defendant No. 1 extinguished?" 10. I have heard Ms. T. Goswami, learned counsel appearing for the appellant. None appears for the respondent. 11. Ms. Goswami submits that the plaintiff appellant has proved the sale deed exhibit-2 by means of which they had purchased the suit land from its owner Kamakhya Dasgupta. The said fact has also been corroborated by PW-5 vendor of the defendant. I have heard Ms. T. Goswami, learned counsel appearing for the appellant. None appears for the respondent. 11. Ms. Goswami submits that the plaintiff appellant has proved the sale deed exhibit-2 by means of which they had purchased the suit land from its owner Kamakhya Dasgupta. The said fact has also been corroborated by PW-5 vendor of the defendant. Such being the possession, the learned Court below was not justified in law in dismissing the suit filed by the plaintiff without giving any appropriate reason in doing so. 12. I have perused the judgment and decree passed by the learned Court below and have also examined the materials available on record. On scrutiny of the judgment passed by the Court below, it is apparent that the plaintiff's suit has been dismissed on the ground that the suit land being a part of land jointly held by several co-owners including the vendor of the plaintiff, Kamakhya Dasgupta, the relief prayed for in the suit cannot be granted by the Court except in a suit for partition. In paragraph 5 of the plant, the plaintiff has categorically pleaded that the land in question originally formed a part of a larger plot of land owned by one Paresh Dasgupta who was a co-sharers of the land included in patta No. 4. It is also pleaded that Paresh Dasgupta died leaving behind 1) Gunanda Dasgupta 2) Jitendra Dasgupta 3) Chitraranjan Dasgupta 4) Nayan Chandra Dasgupta 5) Kamakhya Dasgupta 6) Janan Ranjan Dasgupta and 7) Sandhya Rani Dasgupta and his wife Smti Suniti Bala Dasgupta as his legal heirs. 13. In the plaint although the plaintiff mentioned that they had purchased the suit land from Kamakhya Dasgupta for valuable consideration, the plaint does not disclose what was the share of Kamakhya Dasgupta in the ancestral property nor does it indicate as to whether there was any partition of the ancestral property amongst heirs of Paresh Dasgupta. 14. As per Section 44 of the Transfer of Protection Act, a transferee would acquire right as to such share of interest of the transferee in the undivided property, but the transferee cannot claim exclusive title and possession over such share of the transferrer in respect of the undivided land in the absence of partition of the property. 14. As per Section 44 of the Transfer of Protection Act, a transferee would acquire right as to such share of interest of the transferee in the undivided property, but the transferee cannot claim exclusive title and possession over such share of the transferrer in respect of the undivided land in the absence of partition of the property. In other words, the transferee in respect of undivided share and interest of the transferrer in a joint property would be entitled to bring in a suit for partition of the share of the tranferrer in the undivided property, so as to claim exclusive title and separate possession on the basis of such purchase. 15. In the instant case, the plaintiffs have not prayed for any decree of partition nor they have impleaded the legal heirs of Paresh Dasgupta. Even if it is assumed that the purchase of the suit land made by the plaintiff vide sale deed Ex-2 is valid in the eye of law, even in that case declaration of exclusive title followed by recovery of khas possession over the suit land cannot be granted in favour of the plaintiffs in the absence of a suit for partition. In that view of the matter, I do not find any infirmity in the concurrent judgment and decree passed by the Courts below. The question of law as framed by this Court stands answered accordingly. It is however, made clear that notwithstanding the judgment passed in the second appeal, it would be open to the plaintiff to institute a suit for partition and for declaration of separate possession on the basis of exclusive title over the land. In the event, such a partition suit is instituted by the plaintiffs, the same would be decided by the Court on its merit without being influenced by any of the observation made by this Court hereinbefore. 16. The Second Appeal stands dismissed. Registry to send back the LCR. Appeal dismissed. _