JUDGMENT : Goutam Bhaduri, J. 1. Heard. 2. The present Appeal is against the judgment and decree dated 30.04.2019 passed by the District Judge, Bemetara in Civil Suit No.16-A/2018 whereby, the suit filed by the Appellants/Plaintiff was dismissed. 3. (I) The brief facts of the case as pleaded are that the Appellants/Plaintiffs who are three in number namely Kamta Prasad, Yado Ram and Lakhbir Singh were sons of Dheluram-Defendant/Respondent No.2. They held a co-parcenary property, which was recorded in name of their father Dheluram. The Plaintiffs claimed that the partition was effected between them and the suit property which was sold by Dheluram belongs to them as it fell in their share. The sale deed was executed in respect of Khasra Nos.792 admeasuring 0.30 hectares and 796 admeasuring 0.64 hectares by father of the Plaintiffs. The Plaintiffs pleaded that their father was given a share of a different land. Over that background, in the year 2011, Dheluram sold the property to Defendant No.1-Pilwadas wherein, the right was claimed by the Plaintiffs. According to the Plaintiffs, they were in dire need of money and as such, a sham and bogus sale deed was executed by their father, though the suit land does not belong to him. It was further pleaded that on the same date of the execution of sale deed i.e. 26.05.2011, another agreement was executed which purports that it was a mortgage. A prayer was made that the suit property which bears Khasra Nos.792 admeasuring 0.30 hectares and 796 admeasuring 0.64 hectares belongs to Yado Ram and Kamta Prasad, the Plaintiffs. Defendant No.1- Pilwadas was the purchaser and prayer was made that he be restrained to interfere in their possession by way of a permanent injunction. (II) The Defendants denied the allegations made in the Plaint. It was further pleaded by execution of the sale deed on 26.05.2011 that they came into possession of the suit land by purchase and the sale deed was an absolute one and no mortgage was created. It was stated even otherwise that the agreement which was executed on 26.05.2011 does not create any right in favour of the Plaintiffs. It was stated that as per the Revenue Court’s order, since the dispute arose with regard to the possession, by order of the Revenue Court, they came into possession of the suit land and prayed for dismissal of the suit. 4. It was stated that as per the Revenue Court’s order, since the dispute arose with regard to the possession, by order of the Revenue Court, they came into possession of the suit land and prayed for dismissal of the suit. 4. The learned trial Court framed as many as 6 issues and primarily, it was held that the sale deed dated 26.05.2011 was not a mortgage but it was an absolute sale. It was further held that no partition had ever taken place between the Plaintiffs and they are not entitled for grant of permanent injunction in respect of the suit property. Primarily on these two issues, the suit was decided, which resulted into dismissal. Hence this Appeal. 5. Being aggrieved by the said judgment and decree, learned Counsel for the Appellants/Plaintiffs submits that document Ex.P-1 shows that the sale deed was not an absolute one but was a mortgage. He further submits that no partition had ever effected, therefore, Dheluram did not have an absolute right to sell a particular part of the land to the purchaser-Pilwadas, Defendant No.1. He further submits that it being a settled proposition and no Cross Appeal having been filed, the finding of fact that no partition has affected would become absolute, therefore, the impugned judgment and decree is faulty, which needs to be interfered with by this Court. 6. Per contra, learned counsel for Respondent/Defendant No.1-Pilwadas, the purchaser submits that no prayer has been made in the suit for cancellation of the sale deed. He further submits that the Defendant, being the bona fide purchaser, was placed into the possession and the same could not have been disturbed. He further submits that the sale deed, once having been registered, would have a presumptive value and the suit was filed beyond 3 years of limitation period, therefore, it was barred by time. He placed reliance in the matter of Kashiram and others vs. Parvati Shivare and others reported in ILR 2023 Chhattisgarh 783 and Mrs. Akella Lalitha vs. Sri Konda Hanumantha Rao and Anr. reported in AIR 2022 SC 3544 and submits that if any relief has not been sought, the same could not have been granted. He submits that irrespective of the fact that limitation has not been pleaded, the Court can very well examine this issue to decide the lis between the parties. Akella Lalitha vs. Sri Konda Hanumantha Rao and Anr. reported in AIR 2022 SC 3544 and submits that if any relief has not been sought, the same could not have been granted. He submits that irrespective of the fact that limitation has not been pleaded, the Court can very well examine this issue to decide the lis between the parties. Therefore, the judgment and decree passed by the Court below is well merited and does not call for any interference. 7. We have heard the learned counsel for the parties, perused the evidence and the documents exhibited. 8. Perusal of the prayer in the Plaint would show that the suit was filed by 3 sons of Dheluram, who was arrayed as Defendant No.2 therein and the sale deed executed by Dheluram in respect of Khasra No.792 admeasuring 0.30 hectare and Khasra No.796 admeasuring 0.64 hectares belongs to Appellants/Plaintiffs No.1 & 2 and simultaneously, a prayer was made that Respondent/Defendant No.1-Pilwadas be restrained to interfere with the possession of the Plaintiffs by a decree of permanent injunction. The Plaintiffs’ suit was primarily in the background of the fact that Dheluram has executed the sale deed though the property does not belong to him along with the fact that the said sale deed was a mortgage and not an absolute sale. In order to find out the dispute between the parties, we went through the sale deed dated 26.05.2011, which is filed and exhibited as D-1. The sale deed purports that Khasra Nos.792 admeasuring 0.30 hectare and 796 admeasuring 0.64 hectares were sold by Dheluram and the description of the property has been earmarked by the 4 corners while describing the property to be an identified one. The contents of the sale deed do not whisper about re-conveyance of the property or the tapping of any mortgage. The contents of the sale deed do not whisper about re-conveyance of the property or the tapping of any mortgage. Section 58(c) of the Transfer of Property Act, 1882 which governs the mortgage by conditional sale, reads as under:- “Mortgage by Conditional Sale.—Where, the mortgagor ostensibly sells the mortgaged property— on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: [Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.” 9. Perusal of the record would further show that agreement (Ex.P-1) styled as ‘bandhak Ikrarnama’ was also executed which purports that Khasra Nos.792 and 796 admeasuring 0.94 hectares in total have been sold on 26.05.2011. It further shows that apart from the said property, other Khasra numbers, which are about 13 acres and not in dispute, would be sold after the permission from the State is obtained by the seller. The said document further provides that the interest on the loan of Rs.10 lacs would be paid. Thereafter, if the contention of the Appellants/Plaintiffs is considered that the document (Ex.P-1) was a mortgage and not a sale, then the said transaction appears to be embodied in two separate documents. The Supreme Court, in a recent judgment of Prakash (Dead) by Lr vs. G. Aradhya and Others reported in 2023 SCC OnLine SC 1025, distinguished the two principles laid down in the matters of Bishwanath Prasad Singh vs. Rajendra Prasad And Another reported in (2006) 4 SCC 432 and Ramlal and Another vs. Phagua and Others reported in (2006) 1 SCC 168 wherein, the principle was laid down that when the sale deed does not recite any other transaction of advance of any sum by the Appellant to the Respondent and only the sale deed shows that it was an intention to cause a conveyance of the property irrespective of the fact that they have incurred any debt, which is embodied in a separate document, would not be considered as mortgage by conditional sale. Therefore, if the agreement is a separate one of re-conveyance or creation of mortgage issued but recitals of the sale deed are silent, the enquiry as to whether it was a mortgage by conditional sale cannot be gone into in view of the bar under Section 58(c) of the Transfer of Property Act. The Court, at para-29 of its judgment, has referred to the earlier judgment as under:- “29. The scope of Section 58(c) of the 1882 Act 1882 was considered in detail in paras 27 to 33 thereof which are extracted below: "27. A bare perusal of the said provision clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of retransfer may be evidenced by more than one document. A sale with a condition of retransfer, is not mortgage. It is not a partial transfer. By reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser (sic seller), and such a personal right would be lost, unless the same is exercised within the stipulated time. 28. In Pandit Chunchun Jha v. Sk. Ebadat Ali [ (1955) 1 SCR 174 : AIR 1954 SC 345 ] this Court clearly held : (SCR p. 177) “We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts.” 29. Yet again in Mushir Mohd. Khan v. Sajeda Bano [ (2000) 3 SCC 536 ] this Court upon construing Section 58(c) of the Transfer of Property Act opined : (SCC pp. 541-42, para 9) “9. The proviso to this clause was added by Act 20 of 1929 so as to set at rest the conflict of decisions on the question whether the conditions, specially the condition relating to reconveyance contained in a separate document could be taken into consideration in finding out whether a mortgage was intended to be created by the principal deed. The legislature enacted that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.” 30. The legislature enacted that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.” 30. Referring to Chunchun Jha [ (1955) 1 SCR 174 : AIR 1954 SC 345 ] it was held : (SCC p. 544, para 14) “14. Applying the principles laid down above, the two documents read together would not constitute a ‘mortgage’ as the condition of repurchase is not contained in the same documents by which the property was sold. The proviso to clause (c) of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a ‘mortgage by conditional sale’.” 31. In Umabai v. Nilkanth Dhondiba Chavan [ (2005) 6 SCC 243 ] wherein one of us was a party, this Court held : (SCC p. 254, para 21) “21. There exists a distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso appended to Section 58(c), however, states that if the condition for retransfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. (See : Pandit Chunchun Jha v. Sk. Ebadat Ali [ (1955) 1 SCR 174 : AIR 1954 SC 345 ], Bhaskar Waman Joshi v. Narayan Rambilas Agarwal [ (1960) 2 SCR 117 : AIR 1960 SC 301 ], K. Simrathmull v. Nanjalingiah Gowder . [1962 Supp (3) SCR 476 : AIR 1963 SC 1182 ], Mushir Mohd. Khan [ (2000) 3 SCC 536 ] and Tamboli Ramanlal Motilal [Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, 1993 Supp (1) SCC 295].)” 32. The High Court relied upon Indira Kaur v. Sheo Lal Kapoor [ (1988) 2 SCC 488 : AIR 1988 SC 1074 ]. [1962 Supp (3) SCR 476 : AIR 1963 SC 1182 ], Mushir Mohd. Khan [ (2000) 3 SCC 536 ] and Tamboli Ramanlal Motilal [Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, 1993 Supp (1) SCC 295].)” 32. The High Court relied upon Indira Kaur v. Sheo Lal Kapoor [ (1988) 2 SCC 488 : AIR 1988 SC 1074 ]. Therein the Court took into consideration the factors adumbrated therein, particularly, a long stipulated period of 10 years for conveying the property and the vendee was prohibited from selling and parting with his right, title and interest for 10 years. The vendor was allowed to occupy the property as a tenant on payment of Rs. 80 per month. No order of mutation was passed in his favour. It was held: “6. … In the present case having regard to the facts and circumstances highlighted in the course of the discussion pertaining to the question as to whether or not the transaction was a transaction of mortgage having regard to the real intention of the parties it would be difficult to hold that the agreement to sell executed by the defendant in favour of the plaintiff was by way of a ‘concession’. It was a transaction entered into by the defendant who was a hard-headed businessman and the documents in question have been carefully framed in legal terminology taking into account the relevant provisions of law. The transaction also discloses the awareness of the defendant about Section 58(c) of the Transfer of Property Act as is evident from the fact that the reconveyance clause is not embodied in the sale deed itself. In the agreement to sell, no reference has been made to the transaction of sale though it has been executed contemporaneously. The defendant who has permitted the plaintiff to continue in possession on payment of rent equivalent to about 13½ per cent interest and was evidently aware of all the dimensions of the matter would not have granted any concession or executed the agreement by way of a concession. The agreement was executed evidently because the plaintiff would not have executed the sale deed unless an agreement to sell by a contemporaneous document was also executed to enable the plaintiff to enforce specific performance within ten years. It was therefore a transaction entered into with open eyes by the defendant and there was no question of granting any concession.” 33. It was therefore a transaction entered into with open eyes by the defendant and there was no question of granting any concession.” 33. In the instant case, as noticed hereinbefore, the transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property. Not only that, the appellant was put in possession of the land, his name was also mutated.” 30. A perusal of the aforesaid paras of the judgment shows that the proviso was added in Section 58(c) of the Act 1882 vide Act No. 20 of 1929, so as to put at rest the conflicting decisions on the issue. A deeming fiction was added in the negative that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale. 31. The judgment of this Court in Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243 , has also been referred to, which defines the distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with condition of repurchase is not a lending and borrowing arrangement. Proviso to Section 58(c) of the 1882 Act 1882 was referred to in the aforesaid judgment to hold that if the condition for re-transfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. The judgment of this Court in Ramlal's case (supra), relied upon by learned Senior counsel for the appellant, was specifically dealt with and distinguished in paras 34 and 35 thereof in Bishwanath Prasad Case (supra) and the same are extracted below: “34. In Ramlal v. Phagua this Court having regard to the peculiar fact situation obtaining therein opined : (SCC p. 173, para 18) “18. In our opinion, agreement to reconvey the property will not ipso facto lead to the conclusion that the sale is nominal and in view of the stand of Defendant 8, as also of the fact that the property worth Rs. 700 has been purportedly sold for Rs. 400, we are of the considered opinion that the sale deed dated 1-12-1965 did not convey any title to Defendant 8. 700 has been purportedly sold for Rs. 400, we are of the considered opinion that the sale deed dated 1-12-1965 did not convey any title to Defendant 8. It is well settled by a catena of decisions that the vendor cannot convey to the vendee better title than she herself has.” 35. As of fact, it was held therein that the sale deed in question was not a real sale deed but was by way of a surety. In that case, furthermore, the defendant categorically admitted that the plaintiff had taken loan. It is in that situation, the transaction was held to be a mortgage. Apart from it, there were other circumstances which led the court to arrive at the said conclusion. The said decision, therefore, cannot have any application in the instant case.” 32. Before we proceed to consider the legal effect thereof, we find it appropriate to extract the contents of the two documents. The contents of the Sale Deed are extracted below: “On this 24 day of December, 1973 I, Gangaramaiah, S/o. late Kambaiah, residing at No. 62, Hosaguddadahalli, Mysore Road, Bangalore City on behalf of minor son Prakashaiah, aged about 13 years as his guardian and father is executing this Absolute Sale Deed in favour of Smt. Rudramma, W/o. Sri Gangappa, aged about 48 years, residing at No. 68, Nehru Road, Hosaguddadahalli,Mysore Road, Bangalore City as follows:— The schedule property mentioned below was acquired by us from Smt. Sharadamma, S/o P.V. Raghavendra Naidu and her children under a registered sale dated 16-10-1963 registered as Document No. 5676 of Book-l in Volume No. 2332 at pages 238-241 registered at the office of the Sub-Registrar, Bangalore North Taluk and ever since the possession of the property is with us. In order to meet domestic expenses and to meet the education of the minor son and also to discharge some of the petty debts the schedule property is sold for a sale consideration of Rs. 5,000/-. I have received a sum of Rs. 3,000/- in the presence of the witnesses and also agreed to receive the remaining sale consideration of Rs. 2,000/-at the time of the registration of this sale deed in the presence of the Sub-Registrar. Thus, total sale consideration of Rs. 5,000/- is paid to me. Therefore, on this day of the registration the possession of the schedule property is delivered to you. 2,000/-at the time of the registration of this sale deed in the presence of the Sub-Registrar. Thus, total sale consideration of Rs. 5,000/- is paid to me. Therefore, on this day of the registration the possession of the schedule property is delivered to you. Here afterwards you can change Katha in respect of the schedule site in your name and you are at liberty to enjoy all such resources available/standing over the schedule site by paying tax, cess etc., and you shall enjoy the schedule site as the absolute owner thereof from generation to generation. There are no other claimants, legal heirs and there is no charge such as the payment of maintenance, Shreedhan rights, minor disputes, court decrees, attachment etc. In the event of any dispute, I will undertake to resolve them at my cost. I have handed over the sale deed dated 16-10-1963 and the Survey Endorsement, Tax paid receipts, Katha Endorsements.” 33. The contents of the reconveyance/agreement of buy back deed dated 24.12.1973 are extracted below: “On this 24 day of December, 1973 I, Smt. Rudramma, W/o. Sri Gangappa residing at No. 68, Nehru Road, Hosaguddadahalli, Mysore Road, Bangalore City is executing this Reconveyance Agreement in favour of Sri. Gangaramaiah, S/o. late Kambaiah, residing at No. 62, Hosaguddadahalli, Mysore Road, Bangalore City as follows:— You are aware that the property mentioned under the schedule given below was sold and registered by you in my name for a sum of Rs. 5,000/- at the office of the Sub-Registrar, Srirampuram, Bangalore City on 24-12-1973 which is registered as Document No. 3265, in Book-l. Since you requested me to resell the schedule property but I permitted you to repurchase the schedule property within a given time, I am granting you 5 years of time for you to repurchase the same. In the event, you pay me the sale consideration of Rs. 5,000/-, I will reconvey the schedule property in your favour. This agreement shall cease on the next day of the expiry of 5 years. At the time of repurchase you must bear the registration charges.” Therefore, the contention of the Appellant that it was a mortgage by conditional sale cannot be accepted. 10. 5,000/-, I will reconvey the schedule property in your favour. This agreement shall cease on the next day of the expiry of 5 years. At the time of repurchase you must bear the registration charges.” Therefore, the contention of the Appellant that it was a mortgage by conditional sale cannot be accepted. 10. Now coming back to the other issue i.e. the document which has been placed before us shows that as per Ex.P-5, Khasra No.792 was earlier having the number-530/1 and 531 whereas, Khasra No.796 was earlier numbered at 496, the record of rights (Ex.P-4) would show that Khasra No. 531 admeasuring 0.54 hectares, Khasra No.530 admeasuring 1.17 hectares and Khasra No.496 admeasuring 1.66 hectares were solely recorded in the name of Raja Ram, who is the grand father meaning thereby, the property was not in absolute name of Dheluram. The finding of the trial Court that no partition has been effected is not under challenge and apart from the fact that the Plaintiffs have not placed any document to appreciate the factum of oral partition though oral statements were made but document Ex.P-4, the revenue document, would show that it was a co-parcenary property held by them. There exists a distinction between a Mitakshara Co-parcenary property and a joint family property. Mitakshara Co-parcenary property carries a definite conception. It is a body of individuals having been created by law unlike a joint family, which can be constituted by agreement of parties. Therefore, the Mitakshara Co-parcenary property would be a creature of law. The Supreme Court, in the case of Hardeo Rai vs. Sakuntala Devi and others reported in (2008) 7 SCC 46 has reiterated the principles laid down in S.B.I. vs. Ghamandi Ram reported in (1969) 2 SCC 33 , which read as under:- “5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Chapter I, pp. 1-27). The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Chapter I, pp. 1-27). The incidents of coparcenership under the Mitakshara Law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except insofar that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter.” 11. Consequently, in absence of any partition on record, the property would be held to be a joint property wherein, the purchasers would also have a right. 12. This Court, in the matter of Ramkali & Anr vs. Ramdaiya & Ors in F.A No.67 of 2002 dated 05.12.2018, held at paras-13 & 14 as under:- “13. The Supreme Court in Commissioner of Wealth-Tax, Kanpur etc. etc. v. Chander Sen etc., AIR 1986 SC 1753 while interpreting section 8 of the Hindu Marriage Act, 1956 has held at para 22 [sic 28] as under: "22. [sic 20]. In view of the Preamble to the Act i.e., that to modify where necessary and to codify the law, in our opinion, it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say, that when son inherits the property in the situation contemplated by S. 8 he takes it as Karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under S.8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in S.8. Further more as noted by the Andhra Pradesh High Court the Act makes it clear by S.4 that one should look to the Act in case of doubt and not to the pre- existing Hindu Law. It would be difficult to hold today the property which devolved on a Hindu under S.8 of the Hindu Succession Act would be HUF property in his hand vis a vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class-l of Schedule under S.8 of the Act included widow, mother, daughter of predeceased son etc." “14. On applying the aforesaid principles to the present case, prima facie it appears that the plaintiffs Ram Kali and Laxmi who were daughter-in-law and grand-son respectively are not included in the schedule of Section 8 of the Hindu Succession Act to maintain a suit of like nature. Therefore the property devolved on Sheetal Prasad cannot be held to be co-parcener HUF vis-a-vis his grandson and daughter-in-law as it would amount to create any other class as mentioned in Section 8 of the Hindu Succession Act.” 13. In view of the aforesaid principles, the purchaser purchased a particular part of the property which the law does not permit as reiterated hereinabove. Therefore, the submission of the Plaintiffs/Appellants that they are in possession of the property which was subject of sale, would be more admissible. In the cross-examination of Kamta Prasad (PW-1), the suggestion was given that the Plaintiffs cannot say that in which particular property, their father and uncle were placed while the partition was effected. The suggestion by the Respondents was also given that the suit property pertaining to Khasra Nos.792 and 796 was not recorded in the name of Plaintiffs individually. In the cross-examination of Kamta Prasad (PW-1), the suggestion was given that the Plaintiffs cannot say that in which particular property, their father and uncle were placed while the partition was effected. The suggestion by the Respondents was also given that the suit property pertaining to Khasra Nos.792 and 796 was not recorded in the name of Plaintiffs individually. Kamta Prasad (PW-1) also accepted the suggestion in the cross-examination that before sale, they were in joint possession and likewise the statement of Yado Ram (PW-2) also fortifies the fact that Khasra Nos.792 and 796 were not recorded in the Revenue records. Cross-examination of Lakhbir Singh (PW-3) also fortifies the fact that they have not made any effort to get their names recorded in the Revenue records to fortify the factum of the partition. 14. In view of the above evidence on record, which is also supported by the Revenue records (Ex.P-3), the finding arrived at by the learned trial Court that the partition was not effected, was justified. In view of the same, the sale by one of the co-parceners of a particular part of property, who put the vendee in possession, cannot be accepted in way of the law laid down in the matter of Ramdas vs. Sitabai & Ors reported in AIR 2009 SC 2735 . Accordingly, the prayer of the Plaintiffs that they have the right and ownership in respect of Khasra Nos.792 and 796 which belong to the Plaintiffs ought to have been accepted. 15. Accordingly we allow the Appeal and the judgment and decree of the trial Court is hereby set aside. The Plaintiffs are entitled to a decree as claimed in the prayer that they are the owners in part of the possession of the land bearing Khasra Nos.792 and 796 and Defendant No. 1-Pilwadas is restrained to interfere in such possession by a decree of permanent injunction. However, his right to file the suit in terms of aforesaid provisions shall survive.