JUDGMENT AND ORDER : 1. This is an appeal under Section 100 of the CPC from the judgment dated 20.09.2011 delivered in Title Appeal No.24 of 2011 by the District Judge, North Tripura, Kailashahar (now Unakoti Judicial District, Kailashahar). For purpose of hearing, the appeal was admitted by the order dated 18.04.2012 on the following substantial questions of law: “Whether the judgment & decree, passed by the first Appellate Court, suffers from perversity?” Liberty was granted to the appellants for raising any other substantial question of law at the time of hearing of the appeal. But no additional substantial question of law has been agitated by the appellants. 2. The essential fact, as may be required to have the perspective of the challenge, may be noted briefly in the beginning. The appellant-respondent filed the suit being Title Suit No.13 of 2007 for recovery of khas possession which has been described in the schedule of the plaint. The schedule of the suit land is reproduced hereunder: “SCHEDULE OF LAND Mouja-Gournagar, known as Chirakuti, Jote No.319, Khatian No.324 (Present) 683 C.S. Plot No.163 (Present) class-Nal, area – 0.16 acres, Bounded by :- North :- Road. South :- Bikram Singha, East :- Road. West :- Mathangini Singha Roy.” It is thus apparent that the suit land is comprised in the present plot No.163 measuring 0.16 acres. Relief to have recovery is based on the declaration of right, title and interest of the plaintiff over the suit land. The plaintiff has stated that the suit land belonged to Arun Chandra Bhowmik, Shambu Bhowmik, Anita Ghosh, Lila Rani Ghosh, Sita Rani Ghosh, Banya Bhowmik and Bharati Bhowmik, hereinafter referred to as Arun Ch. Bhowmik et al. By the registered sale deed No.1-648 dated 09.02.2000 which was however registered on 15.02.2000, the plaintiff purchased the suit land from Arun Ch. Bhowmik et al. The record of rights was mutated and khatian No.683 of Mouja- Gournagar was opened in the name of the plaintiff. The defendants are the brothers. Taking advantage of the plaintiff’s remaining out of the village, on 10.05.2002 the defendants dispossessed the plaintiff from the possession of the suit land. The defendants do not have any right, title and interest over the suit land. Their status, according to the plaintiff, are of trespassers. The defendants are the brothers. Taking advantage of the plaintiff’s remaining out of the village, on 10.05.2002 the defendants dispossessed the plaintiff from the possession of the suit land. The defendants do not have any right, title and interest over the suit land. Their status, according to the plaintiff, are of trespassers. As the defendants were enjoying the usufructs relief to have the mesne profit at the rate not less than Rs.1,000/- per year has been made in the suit. 3. By filing the written statement, the defendants have stated that the suit is bad for non-joinder of the parties inasmuch as their mother Matangini Sinha Roy, even though she is in the possession of the suit land, has not been impleaded as the party. According to them, by the sale deed No.1-263 dated 26.02.2007 part of the suit land was transferred and thus the plaintiff had lost right, title and interest over the land covered by the sale deed dated 26.02.2007. According to the defendants, the father of the plaintiff and the defendants, namely Anil Ch. Singha Roy was the owner of the suit land. By the registered sale deed No.254/1957 dated 05.08.1957 they sold out the suit land along with some other lands to one Sital Ch. Bhowmik with an oral contract to repurchase the suit land along with other lands measuring 0.32 acre. Since there was an oral agreement, Anil Ch. Singha Roy continued in the possession and accordingly their possession has been recorded in the previous Khatian No.324 of Mouja-Gournagar under column No.24 as permissive possessor. Anil Ch. Singha Roy died on 11.10.1990 leaving behind his wife, Matangini Singha Roy, eldest son namely Pulak Singha Roy and other sons namely Vibekananda Singha Roy (the plaintiff), Birbikram Singha Roy (the defendant No.1), Sangram Singha Roy (the defendant No.2) and daughters as his legal heirs. The defendants and their mother continued in the possession even after death of their father. The eldest son of Anil Ch. Singha Roy separated from the father’s family. Smt. Purabi Singha Roy was married during the life time of Anil Ch. Singha Roy. After death of Anil Ch. Singha Roy, the plaintiff became the karta as well as the manager of the joint family comprising of the plaintiff, the defendants and their mother, Matangini Singha Roy. They had the common joint family ration card No.150 Sl. No.7 (BPL). Smt. Purabi Singha Roy was married during the life time of Anil Ch. Singha Roy. After death of Anil Ch. Singha Roy, the plaintiff became the karta as well as the manager of the joint family comprising of the plaintiff, the defendants and their mother, Matangini Singha Roy. They had the common joint family ration card No.150 Sl. No.7 (BPL). The defendants, their mother and the plaintiff decided to repurchase the suit land along with other land in the name of joint family members after disposing of a part of their joint family property. 4. On being authorised by the family members, the process of retransfer started by way of returning the money with the legal heirs of Sital Ch. Bhowmik, the plaintiff, defendants and their mother had collected Rs.12,000/- (rupees twelve thousand) only by sale of their other properties by the registered sale deed No.1-644 dated 15.02.2000 and 1-640 dated 15.02.2000. They had collected Rs.16,000/- (rupees sixteen thousand) only from one Kankan Kar and thus defrayed the expenses for registration etc. Thereafter, Sital Ch. Bhowmik by the registered deed No.1-642 dated 15.02.2000 transferred the suit land in their favour. However, in the deed the plaintiff has been shown as the vendee. They have categorically stated that by the strength of the registered sale deed No.1-1676 dated 12.10.2006, the plaintiff had sold his share measuring 0.06 acre to the defendant No.1 from the above noted 0.24 acre of land so he has no share in the suit land. The defendants and their mother are the owners of the suit land. The plaintiff was the Karta of the Hindu Undivided Family (HUF) since 11.10.1990 till 10.12.2001 when the plaintiff separated himself from the joint family. It has been further asserted that the plaintiff with the defendant No.1, their mother Matangini Singha Roy and said Purabi Singha Roy with knowledge and consent of the defendant No.2 sold 0.03 acre to one Sabitri Debbarma by the strength of the registered sale deed No.1-647 dated12.04.2001. In the para 20, the defendants have asserted as under: “That, the plaintiff by executing some deeds in respect of suit land, personally and severally had sold 0.03 acres + 0.06 acres + 0.07 acres of land. Total 0.16 acres of land from 0.24 acres of purchased land by deed no.1-642 dated 15-2-2K. So he cannot claim any title over the suit land.” 5. Total 0.16 acres of land from 0.24 acres of purchased land by deed no.1-642 dated 15-2-2K. So he cannot claim any title over the suit land.” 5. The trial court for purpose of adjudication framed as many as 6 issues including the two issues as reproduced here under: “3. Whether the plaintiff and defendants were the members of a Hindu undivided joint family and the plaintiff was Karta/manager of said joint family and from the joint fund of undivided Hindu Joint Family plaintiff purchased the suit land with other land? 4. Whether the plaintiff is the owner of the suit land?” 6. While deciding the issue No.3 as extracted, the trial court has returned the finding as under: “16. On perusal of Exhibit A series, original certified copy of sale deed bearing registration No.1-640 dated 15.2.2000 i.e. Exhibit F Series, it reveals that the plaintiff and the defendants sold some of their joint property on 15.2.2000 to Ranjit Singha Roy. 17. It is also to be noted that on the same date i.e. on 15.2.2000 the suit land was also registered in favour of the plaintiff by the legal heirs of Sital Ch. Bhowmik. So, from this evidence, I am of the opinion that defendants’ plea that they collected some money for repurchase of the suit land along with other land by selling of some joint properties of plaintiff and defendants, has mere weight age then that of plaintiff’s. As it is established law that Civil cases are determined on the basis of preponderance of probability so taking into consideration the circumstances and the evidence on record I finally come to a decision that the evidences are in favour of defendants and the plaintiff failed to give true account of the sources of money by which he purchased the suit land. So in such circumstances, I hold that the defendants handed over the money to the plaintiff for purchasing the suit land from the joint fund of their family. Thus, the instant issue is determined in favour of the defendants and against the plaintiff.” 7. Based thereon, the trial court had also decided the issue No.3 holding that it has been proved that the plaintiff and the defendants were the members of the Hindu Undivided Family (HUF) and the plaintiff was the Karta of the said joint family after death of Anil Ch. Singha Roy. 8. Based thereon, the trial court had also decided the issue No.3 holding that it has been proved that the plaintiff and the defendants were the members of the Hindu Undivided Family (HUF) and the plaintiff was the Karta of the said joint family after death of Anil Ch. Singha Roy. 8. Having observed thus, the suit was dismissed by the judgment dated 11.05.2011 delivered in Title Suit No.13 of 2007. The plaintiff-respondent has carried out an appeal under Section 96 of the CPC in the court of the District Judge, North Tripura, Kailashahar (now Unakoti Judicial District). While deciding the said appeal, the first appellate court reversed the finding of the trial court after framing two points e.g. (1) Whether the issues are correctly decided by the learned court below? and (2) Whether the appeal has merit? 9. The trial court has observed while deciding the point No.2 as under: “After appreciation of the evidence and scanning, the documents as produced by both the parties it is found that the suit land was purchased by the plaintiff-appellant and land was mutated in his name. Thereafter, the defendants-respondents dispossessed him from the suit property measuring .24 acre. After dispossession the plaintiff-appellant sold out the land measuring .16 acre to different persons by execution of deeds (Exts. B, C & D). So, his ownership remained for land measuring .08 acre. But, he prayed for declaration of title for .16 acre of land which is not just and reasonable. From the scrutiny of the evidence it is found that the legal heirs of Sital Chandra Bhowmik had transferable title and they accordingly, sold out .24 acre of land to the plaintiff-appellant. He acquired right, title and interest over that land and after transfer of the property measuring .16 acre of land. Defendants-respondents, the permissive possessors turned hostile land therefore, cloud came over the title of the plaintiff-appellant. Therefore, he is entitled to get the decree for declaration of title over the land measuring.8 acre and recovery of possession of that area of land by eviction of the defendants-respondents from the land measuring .08 acre only. Therefore, the appeal has merit in respect of the land measuring .08 acre, not for the land measuring .16 acre, as claimed. Appeal, therefore, is partly allowed. Judgment and Order passed by the learned Court below is hereby set aside.” 10. Mr. Therefore, the appeal has merit in respect of the land measuring .08 acre, not for the land measuring .16 acre, as claimed. Appeal, therefore, is partly allowed. Judgment and Order passed by the learned Court below is hereby set aside.” 10. Mr. A. Deb, learned counsel appearing for the defendant-appellants has submitted that the finding as returned by the first appellate court is unsustainable in law inasmuch as the plaintiff purchased the suit land as the karta of Hindu Undivided Family (HUF) by means of the fund raised by the defendants, the plaintiff and their mother and as such he cannot claim the exclusive title over the suit land. That apart, the story of dispossession by the defendants is a figment of imagination. Mr. Deb, learned counsel for the defendant-appellants has stated that there had been no cogent reason to reverse the finding of the trial court. He has categorically submitted that the plaintiff has suppressed the fact of sale of land by the registered sale deed No.1-647, dated 12.04.2001, Exbt.B, measuring 0.16 acre, by the registered sale deed No.1-263 dated 26.02.2007, Exbt.C, measuring 0.03 acre and sale deed No.1-1676 dated 12.10.2006, Exbt.D measuring 0.07 acre. According to Mr. Deb, learned counsel for the defendant-appellants all those deeds were executed by the legal heirs of Anil Ch. Singha Roy. The first appellate court has committed a serious illegality while appreciating the evidence as placed on record. 11. From the sale deed No.1-647 dated 12.04.2001 (Exbt.B) it appears that one Sabitri Debbarma purchased a land measuring 0.03 acre from CS plot No.254 (1056) corresponding to CS Plot No.163, presently comprised in Khatian No.863, Exbt.2. Even though it has been claimed by the plaintiff that the CS Plot No.163 was under his exclusive right but from the sale deed dated 12.04.2001, Exbt.B, it would be apparent that the said plot was not under the exclusive ownership of the plaintiff. Mr. Deb, learned counsel for the appellant criticised the findings on having due reference to the findings of the trial court. According to Mr. Deb, learned counsel the story of dispossession on 08.05.2002 is entirely imaginary and as such the witnesses were sceptic. Save and except making a general statement that they saw the plaintiff in the possession, they refrained to elaborate further. Mr. According to Mr. Deb, learned counsel the story of dispossession on 08.05.2002 is entirely imaginary and as such the witnesses were sceptic. Save and except making a general statement that they saw the plaintiff in the possession, they refrained to elaborate further. Mr. Deb, learned counsel in this regard has placed his reliance on a decision of the apex court in S. V. R. Mudaliar vs. Mrs. Rajabu F. Buhario reported in AIR 1995 SC 1607 where the apex court has held that whenever it is necessitated to reverse the finding of the trial court, the appellate court shall consider the finding and pass a reasoned finding else such finding is bound to be perverse. The first appellate court while observing that the plaintiff is the owner of the suit land, save and except those parts which were transferred by the plaintiff before instituting the suit. Such plea has been completely debased by the documentary evidence (Exbt.B) wherefrom it transpired that the amount of land measuring 0.03 acre was jointly sold out by the defendants, the plaintiff and their sister, Purabi Singha Roy. 12. Mr. Deb, learned counsel at this juncture pleaded estoppel to operate against the plaintiff for non-consideration of the documents i.e. Exbt.B and for misreading of the documents i.e. Exbt.A and Exbt.F, failure of justice has occasioned. Mr. Deb, learned counsel for the appellant having referred to a decision of the apex court in Abdul Raheem vs. Karnataka Electricity Board reported in AIR 2008 SC 956 has submitted that the reversal of finding of fact arrived by the first appellate court ignoring vital documents gives rise to a substantial question of law and as it is evident that the documents, Exbt.A, B and F have not been appreciated or have been appreciated wrongly. The impugned judgment is therefore liable to be interfered with. Inviting notice of this court to the expression of Hindu Undivided Family (HUF), Mr. Deb, learned counsel has stated that even there is no definition in the Income Tax Act or in any other statute. The essential features constituting the Hindu Undivided Family (HUF) may broadly be noted as under: (1) One should be Hindu, Jains, Sikhs and Buddhists are considered as Hindus but not Muslims or Christians. Deb, learned counsel has stated that even there is no definition in the Income Tax Act or in any other statute. The essential features constituting the Hindu Undivided Family (HUF) may broadly be noted as under: (1) One should be Hindu, Jains, Sikhs and Buddhists are considered as Hindus but not Muslims or Christians. (2) There should be a family i.e. group of persons more than one and (3) They should be undivided i.e. living jointly and having commonness amongst them. All these three feature are mutually inclusive. It is a body consisting of persons lineally descended from a common ancestor and include their wives and unmarried daughters who are living together, joint in food, estate and worship, which element may not be essential. The daughter on her marriage ceases to be a member of her father’s HUF and becomes a member of her husband’s HUF. 13. Having referred to the para-11 of the written statement, Mr. Deb, learned counsel has submitted that Anil Ch. Singha Roy, who died on 11.10.1990, during his lifetime partitioned his land i.e. the suit land with other lands among the legal heirs i.e. Vibekananda Singha Roy, the plaintiff, Bir Bikram Singha Roy, the appellant No.1 now deceased, Sangram Singha Roy, the appellant No.2, Matangini Singha Roy, widow of Anil Ch. Singha Roy and Purabi Singha Roy. Since then the defendants No.1 and 2, their mother and sister have been possessing the suit land along with other lands. There had been no formal partition. Even then, it has been stated that Pulak Singha Roy is separated from the joint family during the lifetime of Anil Ch. Singha Roy, despite that his share has been shown in khatian No.531. Unless the properties are partitioned by metes and bounds, all the properties remain under the HUF. In this regard, Mr. Deb, learned counsel for the appellants has referred the decisions of the apex court in Bhagwati Prasad Sah & Ors. vs. Dulhin Rameswari Kuer reported in 1951 SCR 603 and Kesharbai @ Pushpabai Eknathrao Nalawade vs. Taraby Prabhakarrao Nalawade & Ors. (Civil Appeal No.3867 of 2014). In this regard, Mr. Deb, learned counsel for the appellants has referred the decisions of the apex court in Bhagwati Prasad Sah & Ors. vs. Dulhin Rameswari Kuer reported in 1951 SCR 603 and Kesharbai @ Pushpabai Eknathrao Nalawade vs. Taraby Prabhakarrao Nalawade & Ors. (Civil Appeal No.3867 of 2014). To illustrate the general principle about the Hindu Family, it has been generally laid in those decisions that a Hindu family is presumed to be joint unless the contrary is proved but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family ‘separated’ himself, there has been separation with regard to all. In those judgments, it has been unequivocally held that the burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. 14. While making his submission on non-impleadment as asserted in the written statement for non-joinder of Matangini Singha Roy, Mr. Deb, learned counsel has referred again a decision of the apex court in Kondiba Dagadu Kadam vs. Supan Gujar & Ors. reported in AIR 1999 SC 2213 where it has been held that where the first appellate court is shown to have exercised its discretion in judicial manner then it cannot be termed to be an error of law or of procedure requiring interference in the second appeal. Therefore, in the alternative this principle of law can be applied in cases where discretion by the first appellate court has been in an unjudicious manner [paragraph-6]. 15. Mr. Deb, learned counsel for the defendant-appellants has further referred to the finding of the trial court to show that the reconveyance as caused by the legal heirs of Sital Ch. Bhowmik was made only after the consideration money was paid from the joint family fund. But that aspect of the matter was not properly assessed by the first appellate court. Thus, the finding as returned by the first appellate court that the plaintiff purchased the land from the legal heirs of Sital Ch. Bhowmik was made only after the consideration money was paid from the joint family fund. But that aspect of the matter was not properly assessed by the first appellate court. Thus, the finding as returned by the first appellate court that the plaintiff purchased the land from the legal heirs of Sital Ch. Bhowmik and took over the physical possession is entirely erroneous and an outcome of misreading of the testimonies. The testimony of DW-3, Kankan Bhusan Kar who stated that he was the neighbour and he did know the affairs of the family of the defendants. He has categorically stated that the family expressed their willingness to repurchase the suit land from the heirs of Sital Ch. Bhowmik and they borrowed Rs.16,000/- from him for this purpose. The plaintiff after death of Anil Ch. Singha Roy acted as the Karta of the family as their eldest son Pulak Singha Roy had separated from the joint family. Mr. Deb, learned counsel therefore contended that the impugned judgment and order warrants interference. Mr. Deb, learned counsel has candidly admitted that beyond this evidence, no further piece of evidence in respect of the family being HUF has been produced. Mr. Deb, learned counsel has also relied on a decision of the apex court in Municipal Corporation, Gwalior Vs. Puran Singh & others reported in AIR 2014 SC 2665 where it has been held that existence of the joint family has to be pleaded and proved. Mr. Deb, learned counsel has candidly submitted that so far the succession of the property of the Hindu male by his legal heirs are concerned and when they are governed by the Dayabhaga School, the legal heirs succeed in well defined share and therefore the property become fractional individual property of the heirs and not joint property. In this regard another decision of the apex court in Commissioner of Wealth Tax, West Bengal vs. Bishwanath Chatterjee reported in 1976 SCR (3)1096 has been referred. 16. Mr. Deb, learned counsel while dilating his submission has stated further that the first appellate court though has given a correct account of the land sold by the plaintiff measuring 0.16 acre by the deeds (Exbt.B. C. and D) but while deducting the sold land, the first appellate court deducted the land not from the suit land. The suit land is measuring 0.16 acre, not 0.24 acre. The suit land is measuring 0.16 acre, not 0.24 acre. If the deduction was made nothing would remain in the account of the plaintiff. However, in the written argument, as filed by the appellants, it has been asserted that: “This account is erroneous firstly because it would appear that by Exbt.1 sale Deed No.1-642 dated 15.02.2000 though plaintiff-respondent purchased 0.24 acres of land against C.S.Plot No.254/1056 (sabek) and Plot No.163 (hal) of Khatian No.324 (Exbt.H), but by Exbt.2 i.e. Khatian No.683 that plaintiff respondent got mutated 022 acres of land instead of 0.24 acres of land against C.S.Plot No.254/1056 (old) and Plot No.163 (present) and accordingly as per accounts of the Ld. First Appellate (sic) court there actually remained 0.06 and not 0.08 acres land after deducting from mutate (sic) mutated land measuring 0.22 as per Secondly and finally it would further appear from the relief No.(A) that plaintiff respondent claimed for a decree of declaration of jote right, title of the plaintiff in the suit land and for recovery of khas possession over 0.16 acres of land and plaintiff respondent did not whisper in the plaint as to why he claimed relief over 0.16 acres of land and not either over 0.22 acres or 0.24 acres of land, but suppressed the fact of selling 0.16 acres of land vide three Sale Deeds i.e. vide Exbt. B, Exbt.C and Exbt.D before institution of the suit. That said Exbt.B, C & D documents submitted by the defendant appellants in order to bring the real fact before the Ld. Court, but even then Ld. First appellate without considering the pleadings and proper account of suit land wrongly held that after sale of aforesaid 0.16 acres of land plaintiff respondent is owner of 0.08 acres of land.” 17. In this regard reliance has been placed on a decision of the apex court in National Textile Corporation Ltd. Vs. Naresh Kumar Badri Kumar Jagad and others reported in AIR 2012 SC 264 where it has been held that the decision of the court cannot be based on the ground outside the pleadings of the party. The first appellate court has truncated the relief to the land measuring .08 acre by refusing the relief to the extent of the land measuring .16 acre. The first appellate court has truncated the relief to the land measuring .08 acre by refusing the relief to the extent of the land measuring .16 acre. In the impugned judgment it has been observed by the first appellate court as under: “But, on the scanning of the evidence as produced by the defendants-respondents (Exts. B, C and D) it is found that out of this .24 acre plaintiff-appellant sold out land measuring .03 acre and then again sold out .07 acre vide Ext. C and then again sold out .06 acre vide Ext. D. Those deeds were executed in the year 2006 by Vivekananda Singha Roy. He sold out the property to different persons and again claimed declaration of title and recovery of possession for those lands also.” Mr. Deb, learned counsel having referred to the paragraph as reproduced above has submitted that in view of that the entire appeal ought to have been dismissed but the same was partly allowed. 18. From the other side, Mr. N. Das, learned counsel appearing for the plaintiff-respondents has strongly refuted the analogy as advanced by Mr. Deb, learned counsel for the appellants. He has submitted that there is no evidence of existence of a Hindu Undivided Family inasmuch as parties are admittedly guided by Dayabhaga School so far the succession of Hindu male is concerned. That apart, it has been admitted that the eldest son’s property has not been separated from the joint family property. Despite that, for purpose of unlawful gain, the plaintiff has been shown to be the karta of the joint family which cannot be accepted in law. Mr. Das, learned counsel has further submitted that when Anil Ch. Singha Roy died, he did not have any title over the suit land or the land as purchased by the plaintiff by dint of the sale deed dated 15.02.2000, Exbt.1, nor in the said sale deed dated 15.02.2000 there is no reference that the conveyance is being made in terms of any oral agreement or which transaction is akin to the transaction under Section 58 of the Transfer of Property Act. It is apparent that all the legal heirs of Anil Ch. Singha Roy were recorded as the permissive possessor and as such they do not have any right to continue in the possession. He has defended the impugned judgment. 19. It is apparent that all the legal heirs of Anil Ch. Singha Roy were recorded as the permissive possessor and as such they do not have any right to continue in the possession. He has defended the impugned judgment. 19. For purpose of determining the substantial question of law as formulated, the following points are required to be dealt with. (1) Whether the transaction of sale vide the sale deed dated 15.02.2000 (Exbt.1) is a transaction covered under Section 58 of the Transfer of Property Act? (2) Whether the transaction as made by the sale deed dated 15.02.2000 as made by the plaintiff as karta of the Hindu Undivided Family (HUF) or whether there was any existence of any Hindu Undivided Family (HUF) on 15.02.2000? and (3) Whether the defendants have discharged the burden in respect of the Hindu Undivided Family (HUF)? Whether the transaction of sale vide the sale deed dated 15.02.2000 (Exbt.1) is a transaction covered under Section 58 of the Transfer of Property Act? 20. It is apparent from the reading of the sale deed No.1- 642 dated 15.02.2000 (Exbt.1) that Arun Ch. Bhowmik et all transferred the property on 09.02.2000 to the plaintiff and the plaintiff got the purchased land mutated in his name vide khatian No.683 (Exbt.2). From the reading of the said sale deed, it would not appear that the transaction had any relation to any previous oral contract of reconveyance, nor the plaintiff has described himself as the karta of Hindu Undivided Family (HUF). Whether the transaction as made by the sale deed dated 15.02.2000 was made by the plaintiff as karta of the Hindu Undivided Family or whether there was any existence of any Hindu Undivided Family on 15.02.2000? 21. This question has partly been answered but the part whether there had been existence of the Hindu Undivided Family (HUF), comprised of the plaintiff, defendants, Matangini Singha Roy (their mother) and Purabi Singha Roy (their sister), is an important aspect to be considered by this court. The law is well settled that the existence of Hindu Undivided Family (HUF) cannot be automatically presumed when the family is guided by Dayabhaga School of law. For that purpose it has to be shown that there had been existence of Hindu Undivided Family (HUF) and that succeeded. The law is well settled that the existence of Hindu Undivided Family (HUF) cannot be automatically presumed when the family is guided by Dayabhaga School of law. For that purpose it has to be shown that there had been existence of Hindu Undivided Family (HUF) and that succeeded. In the instant case, there had been no Hindu Undivided Family (HUF) existed even the defendants did not state that Anil Ch. Singha Roy was the karta of an undivided Hindu Family. The claim as made is only after his death. Even Mr. Deb, learned counsel has candidly submitted that when a family is governed by Dayabhaga School, after death of a Hindu male, his property devolves to his legal heirs in equal share unless they form and constitute a Hindu Undivided Family (HUF). There cannot be any presumption of existence of Hindu Undivided Family (HUF). In this case, the eldest son’s property namely Pulak Singha Roy admittedly part of the un-partitioned land left by Anil Ch. Singha Roy. Therefore, it can safely be stated that there was no existence of Hindu Undivided Family (HUF) even after death of Anil Ch. Singha Roy. The defendant-appellants relied on the aspect of fund for purchase of the suit land and according to them they had collected Rs.12,000/- by selling out joint property and further collected Rs.16,000/- borrowing from DW-3, Ankan Bhusan Kar. DW-3 has in his cross-examination stated as under: “I have not submitted any documentary exhibit to prove that legal heirs of Anil Singha Roy borrowed money from me. I have also not submitted any documentary exhibit in proof of back payment of rest portion of money. I landed (sic) lend money in the month of February, 2000 but cannot recollect the exact date. In the year 1957 my age was about 8 years. At the time of conveyance or the transaction I was not present. It is not a fact that legal heirs of Anil Singha Roy did not borrow any money from me to repurchase the land. It is not a fact that said land was not sold out on condition to repurchase.” 22. There is no evidence to show that there was existence of the oral agreement of re-conveyancing the land and protecting the transaction under Section 58 of the Transfer of Property Act. Admittedly, Aurn Ch. Bhowmik et all are the legal heir of Sital Ch. There is no evidence to show that there was existence of the oral agreement of re-conveyancing the land and protecting the transaction under Section 58 of the Transfer of Property Act. Admittedly, Aurn Ch. Bhowmik et all are the legal heir of Sital Ch. Bhowmik since deceased but the defendants did not produce any of those legal heirs to show there was existence of an oral agreement of re-conveyancing. Hence, this court is of the view that the existence of the contract of reconveyance could not be proved by the defendants. The record of rights as produced, however, have shown that Anil Ch. Singha Roy was occupying the suit land as the permissive possessor even after the sale that took place in the year 1957. The claim of the plaintiff that he has handed over the possession has to be in the circumstances interpreted as handing over the notional possession, meaning the defendants and others had become the permissive possessor under the plaintiff. The status of permissive possessor does not conclusively show that the defendants and others were in possession in terms of the oral agreement for re-conveyancing. But the documents, Exbt.1, has categorically stated that the legal heirs of Sital Ch. Bhowmik were in possession meaning through the defendants and others whose names have entered in the column 24 of the khatian No.324, Exbt.H. 23. From reading of the Exbt.1, it appears that, that was an absolute sale in favour of Sital Ch. Bhowmik and when it could not be established that there was any existence of oral agreement, the transaction cannot be brought under Section 58 of the Transfer of Property Act. It further appears that Anil Singha Roy alias Anil Ch. Singha Roy had other properties from the khatian No.367, Exbt. J, it appears that all the legal heirs of Anil Ch. Singha Roy including the plaintiff have been shown as the coparcener having the equal share of the land comprised in new plot Nos.1603 and 1606/2083. Therefore, it shows that even Pulak Singha Roy was very much part of that family and so called separation has no bearing on the property. Thus, it cannot be also held that Puak Singha Roy was not part of that family which was having the joint property devolved by way of succession. Therefore, it shows that even Pulak Singha Roy was very much part of that family and so called separation has no bearing on the property. Thus, it cannot be also held that Puak Singha Roy was not part of that family which was having the joint property devolved by way of succession. No other documents, except Exbt.K, which is not relevant at all in the context of the dispute have been introduced in the evidence by the defendants. As such, the defendants have utterly failed to establish that the plaintiff was the karta of Hindu Undivided Family (HUF) in continuance or as constituted after death of Anil Singha Roy alias Anil Ch. Singha Roy. 24. The aspect that has been seriously asserted by the defendant-appellants is that there was a serious suppression by the plaintiff in respect of the sale of the property which he acquired from the property which he became owner by the sale deed dated 15.02.2000. Exbt.B, C and D are the relevant documents. From the sale deed No.1-647, Exbt.B, it is apparent that it is in respect of khatian No.531/683 and plot Nos.160/161/162 and 163. Except the plot No.163, the plaintiff is not absolute owner of the other plots. Thus, he did not show that the plot No.163 was ever treated as the land of the members of the ‘Hindu Undivided Family’ (HUF). Similarly, by the sale deed No.1-263, (Exbt.C), the plaintiff sold a part of the land comprised in plot No.163 measuring .07 acre whereas by the sale deed No.1-1676, Exbt.D series, the plaintiff sold out part of the plot No.163 measuring .06 acre. 25. From the reading of the sale deed No.1-647, Exbt.B, it cannot be gathered how much of the land has been taken out from the plot No.163 to form the sold out land measuring .03 acre. In this regard, the first appellate court has mis-directed his determination. But it is clear that those sale deeds (Exbt.C and Exbt.D) have not been challenged by the defendants or any legal heir of Anil Ch. Singha Roy. This clearly shows that there claim over the land is a ploy inasmuch as without challenging those deeds, Exbt.C and Exbt.D, in particular, they cannot raise the claim of ownership by Hindu Undivided Family (HUF). Singha Roy. This clearly shows that there claim over the land is a ploy inasmuch as without challenging those deeds, Exbt.C and Exbt.D, in particular, they cannot raise the claim of ownership by Hindu Undivided Family (HUF). Hence, this court is of the clear view that there is no existence of Hindu Undivided Family (HUF) and the plaintiff’s to be karta of Hindu Undivided Family (HUF), at least, no such evidence has been led by the defendants. 26. Impleadment for recovery depends on the possession over the land. The plaintiff has got the right to find out who are the persons actually in possession over the suit land. In this regard, there is no pleading that Matangini Singha Roy was in possession over the plot No.163. From the deed No.1-647, Exbt.B, it is apparent that the plot Nos.160, 161 and 162 under khatian Nos.531/563 (Old) are adjoining. As such, even if there is wrong impleadment, it is at the risk of the plaintiff and the plaintiff himself would find difficulty in executing the decree, if granted by the court. Further, from Exbt.2, (khatian No.683 corresponding to old khatian No.531/683) that the plaintiff is owner of two plots under that khatian viz.165 (corresponding to 383) and 163 corresponding to old plot No.58/1056. The plot No.163 measuring .24 acre, which according to the plaintiff, pertains to the suit land. It is to be noted that after the sale made to Sital Ch. Bhowmik, the land was mutated and recorded in khatian No.324. Plot No.163 is part of that khatian No.324 and the entire plot No.163, measuring .24 acre was transferred to the plaintiff. Since the other plot is not in dispute, this court has no purpose to enquire into its title. As such, the suit land was exclusively owned by the plaintiff. Whether the defendants have discharged the burden in respect of the Hindu Undivided Family (HUF)? 27. In view of what has been discussed above, it would irresistibly lead us to the conclusion that the defendants have entirely failed to prove that the land comprised in plot No.163 was sold on and for behalf of the Hindu Undivided Family (HUF) comprised of the plaintiff and the defendants. As corollary to that, it has to be held that the defendants do not have any right, title and interest over the said land. As corollary to that, it has to be held that the defendants do not have any right, title and interest over the said land. Now, the question that has to be finally resolved whether the first appellate court was correct in declaring that the plaintiff as the owner of only .08 acre of the plot No.163? This finding is not based on records, as we have gathered from Exbt.C and Exbt.D that the plaintiff has sold out .07 acre of land from plot No.163 to one Braja Gopal Singha by the sale deed No.1-263 of 2007, Exbt.C and .06 acre from plot No.163 to one Bikram Singha Roy, brother of the plaintiff, Exbt.D. Hence, it clearly comes to an area of land measuring .013 acre (.07 +.06 acre) which have been transferred to those persons from the plot No.163, not from the suit land alone. 28. However, it has been further observed by this court that by the sale deed No.1-647 of 2001, Exbt.B, and unascertained part of plot No.163 has been sold out to Smt. Sabitri Debbarma. Thus, the plaintiff cannot claim ownership of those lands covering by Exbt.B, C and D. But there is no difficulty in declaring the right, title and interest of the plaintiff over the remaining part of the land comprised in plot No.163, recoded under khatian No.683 of Mouja- Gournagar. There cannot be any amount of doubt that the suit land cannot be 0.16 acre, it must be lesser than 0.11 acre, in view of what has been observed hereinabove. Therefore, the plaintiff is entitled to recover the land measuring lesser than 0.11 acre from the defendants as it has not been denied by the defendants that they are in possession of the said land. However, it is made clear that out of that 0.11 acre, the plaintiff will not be entitled to recover the part of the land covered by plot No.163 of khatian No.683 of mouja-Gournagar which has been sold out to Smt. Sabitri Debbarma. Taking that part of the land comprised in plot No.163 sold to Smt. Sabitri Debbarma, the plaintiff can recover the remaining part of the land from the defendants. As such, the appeal is bound to fall and accordingly, the same is dismissed subject to modification as recorded above. Draw the decree accordingly. Thereafter, send down the LCRs.