JUDGMENT : Dr. A.K. Rath, J. 1. Plaintiffs are the appellants against an affirming judgment. 2. Raghunath Dash, predecessor-in-interest of the plaintiff, instituted O.S. No.176 of 1982-I in the court of the learned Munsif, Bhadrak for declaration of right, title, interest, confirmation of possession, declaration that M.S. R.O.R. is wrong and permanent injunction impleading the respondents as defendants. The case of the plaintiff is that one Madhusudan Dash was the common ancestor of the parties. He died leaving behind his four sons, namely, Baidyanath, Biswanath, Udaynath and Raghunath (original plaintiff). The defendants are the sons and daughters of Udaynath. Sabak settlement plot no.265, area Ac.1.24 dec. and plot no.266, area Ac.0.07 dec. originally belonged to one Braja Kumar Padhi. He gifted the same to the plaintiff-Raghunath, Baidyanath and Udaynath. In the year 1948, there was a partition in the family. Ac.0.60 dec. of land out of plot nos.265 and 266 was allotted to the plaintiff. An area of Ac.0.71 dec. of land out of plot no.265 was allotted to Udaynath. Both parties were in possession of their respective lands. However, in major settlement, the land allotted to the plaintiff was reduced to Ac.0.56 dec., whereas Ac.0.77 dec. had been recorded in the name of the defendants. Thus the dispute between the parties pertains to the area Ac.0.06 ½ dec. of land. 3. The defendant nos.1 to 6 filed written statement, admitted the factum of gift under Ext. A. They pleaded that the three brothers Baidyanath, Udaynath and Raghunath had title over the property. Biswanath had no share. There was no partition by metes and bounds. They are in possession of land according to their convenience. In major settlement operations, both the parties filed a joint petition to record their lands separately according to their possession. After enquiry, the ROR was published as per the possession of the parties. During pendency of the suit the plaintiff died, whereafter the legal heirs have been substituted. During pendency of the second appeal, the appellant as well as respondent nos.1 and 3 died, whereafter their legal representatives have been brought on record. 4. On the inter se pleadings of the parties, learned trial court struck ten issues. Both the parties led evidence, oral and documentary, in substantiate their cases. Learned trial court came to hold that there was no previous partition between the parties and as such the suit is not maintainable. 4. On the inter se pleadings of the parties, learned trial court struck ten issues. Both the parties led evidence, oral and documentary, in substantiate their cases. Learned trial court came to hold that there was no previous partition between the parties and as such the suit is not maintainable. Held so, it dismissed the suit. 5. Felt aggrieved, the plaintiff filed T.A. No.44/283 of 1987-I before the learned Additional District Judge, Bhadrak. Learned lower appellate court in paragraph 10 of the judgment came to hold that from the evidence of the parties, it is clear that the suit plots had been partitioned and the plaintiff and defendants possessed their respective shares. The plaintiff had received a draft parcha and he had not taken any step for correction of M.S. R.O.R. Further in paragraph 11, it held that in view of its finding with regard to the partition of the suit plots, the findings of the learned trial court that there was no partition of the suit plots as claimed by the plaintiff is liable to be set aside. The plaintiff had not proved that area Ac.0.06 ½ dec. of land belonged to him. Held so, it confirmed the findings of the learned trial court and dismissed the appeal. 6. The second appeal was admitted on the following substantial question of law. “The lower appellate court having found that there was partition and the parties are possessing their respective shares and further that the defendants have no interest in the suit plot, whether it erred in dismissing the suit for declaration of title.” 7. Heard Mr. Dwarika Prasad Mohanty, learned counsel for the appellants and Mr. Sanjay Kumar Mohanty, learned counsel for the respondents. 8. Mr. Mohanty, learned counsel for the appellants submitted that in paragraph 8 of the judgment, learned trial court held that the plaintiff had right, title and interest and in possession over the suit land. But then, it held that there was no previous partition in respect of the suit land. No prayer had been made for partition of the suit properties. Thus the question of declaration of right, title and interest does not arise. The findings are contradictory. He further submitted that the findings rendered by the learned lower appellate court in paragraphs 10 and 11 are also contradictory. No prayer had been made for partition of the suit properties. Thus the question of declaration of right, title and interest does not arise. The findings are contradictory. He further submitted that the findings rendered by the learned lower appellate court in paragraphs 10 and 11 are also contradictory. In paragraph 10, learned lower appellate court came to hold that from the evidence of the parties, it is clear that the suit plots had been partitioned and the plaintiff and defendants possessed their respective shares. The plaintiff had received a draft parcha and had not taken any steps for correction of M.S. R.O.R. The alternative submission of Mr. Mohanty, learned counsel for the appellants is that since the record of right stands in the name of the plaintiff and predecessors of the defendants, the suit can be converted to a suit for partition a preliminary decree for partition can be passed. 9. Per contra, Mr. S.K. Mohanty, learned counsel for the respondents submitted that the suit plot was never partitioned amongst the co-sharers. The parties were in possession of their respective shares. Though Baidyanath, brother of the plaintiff, had 1/3rd share, but his successors are not parties to the suit. In the absence of necessary party, no effective decree can be passed. He further contended that during major settlement operations, both the parties filed a joint petition to record their lands in their names as per their possession. Accordingly, M.S.R.O.R. has been prepared. Further there is no prayer for partition of the suit properties. 10. Both the parties admit that Braja Sundar Padhi was the original owner of the suit property. He gifted the same in favour of original plaintiff, Udaynath and Baidyanath. The plaintiff asserts that since the dissentions cropped up in the family, his father partitioned the suit property and other properties between four sons by means of unregistered partition deed dated 10.3.1948. Accordingly, Ac.0.60 dec. of land out of plot nos.265 and 266 was allotted to him whereas Ac.0.71 dec. of land out of plot no.265 was allotted to defendants. The major settlement record of right had been wrongly published. There is no evidence on record that the suit property had been partitioned between the parties. Though the plaintiff asserts that Braja Kumar Padhi gifted the properties to the plaintiff and his brothers, Baidyanath and Udaynath, but then, Baidyanath is not a party to the suit. The major settlement record of right had been wrongly published. There is no evidence on record that the suit property had been partitioned between the parties. Though the plaintiff asserts that Braja Kumar Padhi gifted the properties to the plaintiff and his brothers, Baidyanath and Udaynath, but then, Baidyanath is not a party to the suit. The judgments of the courts below also suffer from internal inconsistencies. The inescapable conclusion is that the judgments of the courts below are not sustainable in the eye of law. The substantial question of law has been answered accordingly. 11. In the result, the impugned judgments are set aside. The matter is remitted back to the trial court for de novo hearing. The appeal is allowed. No costs.