Harphul Singh Brar, J.
1. This is a Regular First Appeal against the judgment dated 12.6.1978 passed by the Sub Judge 1st Class, Ludhiana vide which the suit of the plaintiff was dismissed with costs. The plaintiff had brought a suit for cancellation of sale-deed dated 3.3.1972 executed by defendants No.1 to 8 in favour of defendant No.9 in respect of the land measuring 4 kanals 4 marlas comprised in Khewat No.134 and Khalauni No.142 Rect. No. 34, Killa Nos. 3/1, Rect. No.32. Killas No. 8/2, 13/1 vide Farad Jamabandi for the year 1968-69 situated in Village Sherpur Kalan, Tehsil and District Ludhiana. The possession of the land was also demanded in the suit. It was averred in the plaint that the plaintiff was a registered partnership firm and Tulsi Dass Jaitwani was its registered partner. He was thus competent to sue. The plaintiff and defendants No.1 to 8 were joint owners in possession of 40 kanals 15 marlas of land comprised in Khewat No. 134, Khatauni No.1 42, Rect. No. 132 Killa Nos. 8/2, 12/13, 12/1, 18/2, 19, 20, 21, 22 and 23/1 Rect No.34 Killa No. 3/1 and land measuring 18 kanals comprised in khewat No. 454 Khatauni No. 471 Rect No. 32 Killa Nos. 11/2, and 12/1 as per jamabandi for the year 1968-69 situated in village Sherpur Kalan, Tehsil and District Ludhiana. This land according to the plaintiff was not yet partitioned. It was averred in the plaint that defendant Nos.1 to 8 had no right to sell any specific portion of the land to defendant No.1 nor they were competent to deliver exclusive possession of the same to defendant No.9. Defendants No.1 to 8, according to the plaintiff, illegally sold 4 kanals 4 marlas of land described above to defendant No.9. The sale deed of the above land was ineffective qua the plaintiff and was liable to be set aside. Defendant No.9 was asked to get the sale deed cancelled and to deliver back the possession but he did not agree; hence the suit was filed.
2. The suit was not resisted by defendants No.1. to 8. They had filed the written statement in which they admitted the claim of the plaintiff. They admitted that they being co-sharers of the joint land had no right to sell any specific portion. Defendant No.9 purchased the land at his own.
3. The suit was resisted by defendant No.9. Preliminary objections were raised by him in his written statement. Firstly, that the plaintiff was not a registered firm nor Tutsi Dass Jaitwani, through whom the suit has been filed, was competent to sue; secondly the suit was not maintainable in its present form and thirdly, that the defendant had constructed factory building after spending more than Rs. 20,000/- to the knowledge of the plaintiff. The plaintiff was now stopped by his own act and conduct from filing the suit. It was then contended that defendants No.1 to 8 were not in joint possession of the land in dispute. They were in possession of specific portions of the lands. They could sell the same. The sale deed in dispute .was a valid document. It could not be cancelled and the suit has been properly valued for the purposes of court fee and jurisdiction. It was then stated in the written statement that defendant No. 9 was a bona fide purchaser for consideration without notice of the title of the plaintiff. The sale in his favour was thus protected Under Section 41 of the Transfer of Property Act.
4. On the pleadings of the parties, the following issues were framed by the trial Court:-
1) Whether the plaintiff firm is registered partnership firm and Shri Tulsi Ram son of Nirmal Dass has locus standi to file the present suit? OPP
2) Whether the suit is maintainable in the present form? OPP
3) Whether the plaintiff is estopped from filing the present suit by way of his own act and conduct? OPD
4) Whether defendants No.1 to 8 were in joint possession of the land sold and were legally competent to deliver its possession? OPP
5) Whether the suit is properly valued for the purpose of court fee and jurisdiction? OP
6) Whether the sate deed executed by defendant No.1 to 8 dated 3.3.72 is illegal, void and ineffective against the plaintiff? OPP
7) What is the effect of the order dated 13.2.1976 dismissing suit against defendant No.1. to 8? OPD
8) Whether defendant No.9 is a bona fide purchaser for consideration without notice? OPD
9) Relief.
5. Learned Sub Judge decided issue No.1. against the plaintiff. Issue No.2 was decided against defendant No.9. Issue No. 3 was decided in favour of defendant No.1. and against the plaintiff. Issues No. 4 and 6 were also decided against the plaintiff in favour of defendant No.9. Issue No. 5 was decided in favour of the plaintiff. Issue No. 7 was decided in favour of defendant No.9, and issue No.9 was decided in favour of defendant No.9 and ultimately, the suit of the plaintiff was dismissed.
6. On issue No.1. the learned counsel for the appellant has argued that the learned trial Court has erred in law and on facts in holding that the plaintiff firm is not proved to have been registered partnership firm and Shri Tulsi Dass Jaitwani had no locus standi to file the suit as he is not proved to be one of its registered partners.
7. To substantiate the averments made in the plaint that the plaintiff firm was a registered partnership firm and Tulsi Dass Jaitwani was a registered partner of the plaintiff firm and his name appeared in the register of firm and as such the plaintiff was entitled to sue through him, Tulsi Dass plaintiff appeared as P.W.I and he has. deposed at the trial that the plaintiff firm was a registered partnership firm and he was one of the registered partners. But the learned trial Court rejected his contention due to the reason that the plaintiff had not produced the certificate of registration in Form-C issued by the Registrar of Firms and the a certificate showing the list of registered partners in Form-A was also not produced. In the absence of these certificates the learned trial Court held that neither the plaintiff firm is proved to have been a registered firm nor Tulsi Dass Jaitwani is proved to have locus standi to file the suit being one of its registered partners.
8. During the course of arguments, learned counsel for the appellant had moved a Civil Misc. Application No. 40-CI of 1996 under Order 41 Rule 27 of the Civil Procedure Code, 1809 (hereinafter called the 'Code') for permission to produce the certified copy of Form-A under Rule 5 maintained Under Section 5 of the Indian Partnership Act, 1932 and Form-C under Rule 9 maintained Under Section 59 of the Indian Partnership Act and photostat copy of the partnership-deed dated 7.4.1979.
9. It has been averred in this application that in support of issue No.1. the plaintiff had appeared as his own witness and had made a statement on oath that the plaintiff-firm was a registered partnership firm and Tulsi Dass Jaitwani was a registered partner of the firm. Evidence of the plaintiff was not rebutted by the defendants. It is further slated in the application that at the time of institution of the suit by the plaintiff, the plaintiff-firm was registered with the Registrar of Firms, Punjab at Chandigarh and the plaintiff-firm was issued Registration Certificate No. 638 of 1974-75 in Form-C (Rulc-9) by the Registrar of Firms, Punjab, Chandigarh. A copy of Form-C is appended with the application as Annexure A/a.
10. It is then averred in this application that the name of plaintiff Tulsi Dass Jaitwani was also shown in the list of partners in Form-A maintained Under Section 59 of the Indian Partnership Act, 1932 and was issued Form-A vide No. 638. A. copy of Form-A is appended with the application as annexure A/2. Certified copies of Form-A and Form-C issued by the Registrar of Firms, Punjab Chandigarh were not produced in the trial Court and the evidence of the plaintiff was closed after recording the statement of the plaintiff. It is then stated in the application that the certificates issued in Form-A and Form-C under Rules 5 and 9 respectively by the Registrar of Firms, Punjab, were genuine documents and their genuineness is beyond any doubt. It is further stated in the application that these documents could not be produced in the trial Court as the same were not available with the plaintiff at the time when the evidence was recorded. The original partnership deeds were deposited with the Income-Tax Department and were not available at the time when the evidence was recorded. The copy of the partnership-deed is appended with this application as an Annexure P-3.
11. In the end, it has been prayed that the appellant-applicant be permitted to produce on record the certified copies of Form-A (Rule 5) Under Section 59 of the Indian Partnership and Form-C and the photostat copy of the partnership deed dated 27.8.1979.
12. Reply was filed to this application on behalf of respondent No.9. A preliminary objection has been taken that the appellant-applicant was not entitled to produce additional evidence at this stage after nearly 20 years of the institution of the suit and it was not the case of the appellant-applicant that such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him in the trial Court. The appellant-applicant should not be allowed to lead additional evidence to fill the lacunas in his case after a considerable delay of time and particularly when the defendant had specifically denied the averments made in the plaint.
13. On facts, in reply to paras No.2 to 5, it has been stated that the averments made in these paras were wrong and denied. The appellant failed to produce the documents in the Court in support of his claim and there was specific denial of the registration of the firm by the answering-respondent in the written statement and thus issue No.1. was framed. The onus of proof of issue No.1. was on the plaintiff and it was decided against the plaintiff. The plaintiff-appellant thus, could not produce the additional evidence in the Court and he had failed to establish that such evidence was not either in his knowledge or he could not produce the same after exercise of due diligence
14. The averments made in other paras are also denied and it is prayed in the end that the application be dismissed with costs.
15. The case was further adjourned for arguments.
16. In the meantime, the appellant filed another Civil Misc. Application No. 907-CI of 1996 under Order 41 Rule 27 of the Code for permission to produce Form-C in Original issued under Rule 9 by the Registrar of Firms, Punjab and the certified copy of partnership deed dated 27.8.1979.
17. It is averred in this application that the applicant/appellant has been able to find out the original Form-C under Rule 9 issued by the Registrar of Firms, Punjab and is, therefore, annexing Form-C in original with the present application. However, the original partnership deed was not available with the applicant as the same had been given to the Income-Tax Department but the applicant was in possession of the certified copy of the same and it was being annexed with this application.
18. It is further staled in the application that in the earlier application, the appellant had annexed three documents as Annexure A/1 (Form-C), Annexure A/2 (Form-A) and Annexure A/3 (Partnership-Deed). The name of the plaintiff Tulsi Dass Jaitwani was also shown in the list of partners in Form-A (Rule 5) maintained Under Section 59 of the Indian Partnership Act, 1932 and this form was issued vide No. 638.
19. It is further averred in the application that the two certificates issued in Form-A and Form-C under Rule 5 and Rule 9 respectively by the Registrar of Firms, Punjab were genuine documents and their genuineness was beyond any doubt.
20. It is further averred in this application that the documents could not be produced in the trial Court as the same were not available with the plaintiff at the time when the evidence was recorded. It is then stated in the application that the plaintiff-firm was originally formed under the partnership deed dated 1.9.1973 and Sarv Shri Tulsi Dass Jaitwani son of Nirmal Dass, Vinod Kumar son of Tulsi Dass Jaitwani and Nirmal Dass Jaitwani were the partners of the firm M/s New Bharat Chemical. Later on, the firm was re-constituted and Sarv Shri Vijay Kumar son of Tulsi Dass Jaitwani and Sanjiv Kumar son of Tulsi Dass Jaitwani were/are the partners of the plaintiff firm. The original partnership deeds were deposited with the Income Tax Department and were not available at the lime when the evidence was recorded. A copy of the partnership was appended along with the application as annexure A/3.
21. It is then averred in para-11 of the application that the documents sought to be produced are genuine documents being certified copies from the Registrar of Firms, Punjab and are Photostat copies of the partnership deeds, the original of which were produced with the Income Tax Department and there could be no doubt about their genuineness.
22. It is prayed in the end that the appellant-applicant be permitted to produce on record copy of Form-C (original) and partnership deed dated 27.8.1979 (certified).
23. Reply to this application was also filed by respondent No.9.Preliminary objections have been taken in the reply and the first one is that the second application for the same cause under order 41 1 Rule 27 C.P.C. is not maintainable. The answering-respondent had filed reply to the earlier application filed by the appellant under Order 41 Rule 27 C.P.C. In order to fill up the deficiency/lacuna in the gap as pointed out in the reply, the appellant has taken new grounds to cover up the case and to meet out the objections raised by way of reply by the answering respondent.
24. The second preliminary objection is that the appellant-applicant was not entitled to produce additional evidence at this stage, i.e. after more than 20 years from the institution of the suit which was instituted on 3.3.1975, and that the evidence sought to be produced at this stage was not of the nature that such evidence was not within the knowledge of the appellant or could not after the exercise of due diligence, be produced by him in the Court since these documents form the very root of the case. Thus, it was not justified to allow the appellant to fill up the lacuna in their case.
25. The third preliminary objection is that there has been specific denial by the answering respondent in the written statement regarding registration of the partnership firm. Therefore, the suit ought to have been dismissed in view of Section 69 of the Partnership Act, 1932 on non-furnishing the certificates pertaining to the registration of the partnership deed at the threshold.
26. In reply to paras No.1 to 3 of the application, it has been stated that the second application for the same cause is not maintainable. The appellant-applicant did not produce the documents being sought to be produced at the time of the institution of the suit and the documents sought to be produced are strictly proved by way of an evidence at the trial Court, and it was no stage for the same to be produced now. It is further averred that the appellant was not still in a position to furnish the original documents.
27. In reply to para-5, it has been stated that there was specific denial in the written statement that the plaintiff-firm was not a registered firm.
28. In reply to para-6, it has been stated that there was a considerable delay of 20 years in filing the application which was liable to be dismissed on that score alone.
29. In reply to para-7, it has been stated that whether the documents sought to be filed by the applicant were genuine or not, was a matter of evidence.
30. In reply to para-8 it has been stated that the applicant-appellant had failed to establish that the evidence sought to be produced was either not within his knowledge or could not be produced after exercise of due diligence at the time of trial of the suit.
31. In reply to paragraphs 9 to 11, it has been stated that the appellant had no locus standi to file the suit by virtue of his being an unregistered firm which has been rendered unable to sue in view of the law laid down Under Section 69 of the Indian Partnership Act, 1932. The appellant cannot be allowed to fill the lacuna in his case at this stage.
32. In the end, it has been stated that the application be dismissed with costs.
33. The learned counsel for the applicant-appellant has cited the following authorities in order to substantiate his contention that the applications filed Ws 41 Rule 27 C.P.C. are liable to be accepted and the applicant-appellant be allowed to produce the additional evidence in appeal as prayed in his application :-
(1)Ajaib Singh and Ors. v. The State of Punjab,1 1987 P.L.J. 226
(2) Gumek Singh and Anr v. Gurbachan Singh and Ors., 1992(2)102 P.L.R. 205,
(3) Pirbhu Dayal and Ors. v. Prem Dass Chela Kishan Lai and Ors., 1995(2)110 P.L.R. 119.
34. On the other hand, the learned counsel for the respondents relied upon Smt. Parmod Human Bhatia v. Om Parkash Bhatia and Ors., A.I.R. 1980 S.C. 446. Natha Singh and Ors. v. TJie Financial Commissioner Taxation, Punjab and other, A.I.R. 1976 S.C. 1053 and Maghar Singh and Anr. v. Kewal Ram, 1972 P.L.J.323 to substantiate his arguments that the applications filed by the applicant-appellant are liable to be dismissed and he should not be allowed to produce the additional evidence at this stage. He has also cited Loonkaran Sethia Etc. v. Mr. Ivan EJohn and Ors. etc., A.I.R. 1977 S.C. 336 and Malhotra and Co. Chandigarh v. Ramesh Mistri, A.I.R. 1971 (Pb. & Hr.) 212 for the proposition that the suit was not maintainable in view of a specific bar Under Section 69 of the Indian Partnership Act, 1932.
35. Let met first decide the prayer of the applicant-appellant as to whether he is entitled to produce additional evidence at this stage. In order to understand the true and correct import of Order 41 Rule 27 C.P.C, it is necessary to reproduce Order 41 Rule 27 C.P.C. which reads as unden-
'27. Production of additional evidence in 'Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if,
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.'
36. It has been clearly laid down under Order 41 Rule 27 that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court until and unless the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or not. In any other case, the Appellate Court may allow such evidence or document to be produced or evidence to be examined, by the party to the appeal, if the Appellate Court requires any document to be produced or any evidence to be examined to enable it to pronounce the judgment or for any other substantial cause.
37. It has been authoritatively held by the Supreme Court that the direction given to the Appellate Court to receive or admit additional evidence under Order 41 Rule 27 is not. an arbitrary one. but is a judicial one circumscribed by the limitation specified in that provision. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so produced on the record will have to be ignored. The true test to be applied in dealing with the application for additional evidence is whether the Appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.
38. It has gain been authoritatively laid down by the Supreme Court in Smt. Parmod Kumari Bhatia's case (supra) that the application for additional evidence has to be filed in the Appellate Court within a reasonable time and not after the long delay.
39. It is an established law that the appellant cannot be allowed to adduce additional evidence just to fill m the lacuna in his case.
40. In the authorities cited by the applicant-appellant, I do not think that they say anything beyond what has been laid down by the apex Court, as described above.
41. It is an admitted fact that the suit in this case was filed on 28.7.1977 and it was decreed on 12.6.1978 and the appeal against the judgment and decree was filed on 12.10.1978. No application for additional evidence was filed before the trial Court and the trial Court dismissed the suit of the plaintiff-appellant by holding that neither the plaintiff-firm is proved to have been a registered firm, nor Tulsi Dass Jaitwani through whom the suit has been filed, is proved to have been one of its registered partners, among other grounds. The plaintiff-appellant waited for about more than long 18 years to file the first application under Order 41 Rule 27 C.P.c. and that also when the appeal was finally fixed for arguments. The applications of the applicant-appellant are liable to be dismissed on the ground of laches only in view of the authoritative pronouncement of the Supreme Court in Smt. Parmod Kumari Bhatia's case (supra).
42. The applicant-appellant seeks to produce Form-C, certified copy of Form-A and certified copy of partnership-deed dated 27.8.1979, the documents which were available to him even at the time of adjudication of the suit. Even the applicant-appellant has not given any reasons as to how such evidence was not within his knowledge or he could not after exercise of due diligence, produce that evidence at the time when the decree appealed against was passed. It is nowhere proved on the record that these documents were necessary for pronouncement of judgment by the Court.
43. In view of my discussion above, these applications of the appellant for permission to produce additional evidence under Order 41 Rule 27 C.P.C. are hereby dismissed.
Now the main appeal:
Defendants No.1 to 4 were proceeded exparte on 1.2.1975 and suit against defendants No.5 to 78 was dismissed on 13.2.1976. Defendant No 1 to 8 had led no evidence.
Issue No. 1
While deciding issue no. 1 against the appellant-plaintiff (hereinafter called 'the plaintiff) the learned trial Court has held that neither the plaintiff-firm is proved to have been registered nor Shri Tulsi Dass Jaitwani is proved to have locus standi to file the suit not being one of its registered partneRs. Shri Tulsi Dass Jaitwani has appeared as PW-1 at the trial. He has deposed that (he plaintiff-firm is a registered partnership firm and he is one of the registered partners. Besides his oral assertion he has neither produced the certificate of registration in form 'C issued by the Registrar of Firms nor the certificate showing the list of registered partners in form 'A'. There is no other evidence on the record which could show that the plaintiff-firm has been registered and Tulsi Dass Jaitwani was one of its registered partners. Clause (2) of Section 69 of the Indian partnership Act, 1932, mandates that no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Registrar of Firms as partners in the firm.
44. In view of this mandatory provision of law the suit of the plaintiff is liable to be dismissed as it has not been proved on the record that the plaintiff-firm is a registered firm or that Tulsi Dass Jaitwani is the registered partner. If any authority is needed on this point, the following are the ones:-
AIR 1971 Punjab and Haryana 212, Malhotra and Company v. Ramesh Mistri
AIR 1977 S.C. 336, Loonkaran Selhia etc. v. Mr. Ivan E. John and Ors. etc.
45. I, therefore, decide issue No.1 against the plaintiff and in favour of defendant-respondent No.9 (hereinafter called defendant No.9) and affirm the findings of the trial Court on this issue.
Issue No.2.
Finding on issue No.2 given by the trial Court against the defendant No.9 is also affirmed.
Issue No.3.
Under the issue the trial Court has held that the plaintiff is stopped from filing the present suit by way of his own act and conduct. The plea of defendant No.9 is that the plaintiff had been seeing him constructing the building on the land in dispute and now the plaintiff was estopped by his act and conduct to file this suit against them. It has come in the evidence of DW-1 Shri Navratlan Singh, one of the partners of M/s Rayat Machine Tools, G.T. Road, Ludhiana, when deposing at the trial on oath that after getting the physical possession of the property in dispute they raised the level and also constructed boundary wall and they also constructed a shed and installed casting still and made their factory and spent about Rs. 1-1/2 lacs on construction and installation of the machinery on the land. It is then asserted by this witness at the trial that the . plaintiff had been seeing them raising the construction and installing the machinery and he never raised any objection. He has further stated on oath at the trial that the suit filed by plaintiff against defendants No.1 to 8 was dismissed and the revision filed by the plaintiff against that judgment was also dismissed in the High Court. It is significant to note here that Tulsi Dass Jaitwani (PW-1) has admitted in his cross-examination that defendant No.1. had constructed a boundary wall despite his protect. He further admitted in his cross-examination that he did not give any notice or lodge any report with the police about the construction of boundary wall by defendant No.9. It is clear from the evidence on record that the plaintiff allowed defendant No.9 to continue with the construction despite his knowledge. In these circumstances, the plaintiff is estopped by his own act and conduct to file the present suit against defendant No.9. This issue is also decided in favour of defendant No.9 and the finding of the trial Court on this issue is affirmed.
Issue No.4 and 6.
Plaintiff and defendants No.1 to 8 were joint owners of the land measuring 40 Kanals 15 Marlas and 18 Marlas, which is described in para No.1 of the plaint. Defendants No.1 to 8 sold 4 Kanals 4 Marlas from that land vide sale deed dated 3.3.1972 which is under challenge in this suit. The plea of the plaintiff is that defendants No.1 to 8 could not sell 4 Kanals and 4 marlas of land out of the joint land. Defendant No.9 contends that defendants No.1 to 8 were in exclusive possession of 4 Kanals and 4 Marlas of land and they being joint owners had a right to sell this land and they gave possession of specific portion of this land measuring 4 kanals and 4 marlas to him which could be adjusted on partition.
46. It is undisputed and is borne out from the recoid that the plaintiff as well as defendants No.1 to 8 were joint owners of the land. Defendants No.1 to 8 were in possession of 4 kanals and 4 marlas of land exclusively by way of a family settlement and they sold this very 4 Kanals and 4 Marlas of land to defendant No.9 and delivered physical possession to him. Obviously, then defendant No.9 stepped into the shoes of defendants No.1 to 8 in respect of the portion held exclusively in possession by defendants No.1 to 8 and sold later to defendant No.9. A co-sharer in an established possession of any portion of an undivided holding not exceeding his own share can sell the same subject to adjustment of the rights of the other co-sharers therein at the time of partition. It is established by now by a catena of authorities that a sale of specific portion of land out of joint holding by a co-sharer is nothing but a sale of a share out of the joint holding. Support in this view is available from the judgment of Full Bench of this Court in Bhartu Ram v. Ram Samp, 1981 FLJ 204. In the case in hand, defendants No.1 to 8 sold only 4 kanals 4 marlas of land to defendant No.9 which was much less than their share in the joint land. Defendants No.1 to 8 were in exclusive possession of the land and on the sale of this land physical possession was delivered to defendant No.9 and it has even been admitted by Tulsi Dass Jaitwani (P.W.I) in his cross-examination that defendant No.9 had constructed a boundary wall on the disputed land. The sale in favour of defendant No.9, is, therefore, valid and he is entitled to possession of this land until partition of the joint land and subject to adjustment of rights of other co-sharers. Consequently, these issues are decided in favour of defendant No.9 and against the plaintiff and the finding of the trial Court on these issues is hereby affirmed.
Issue No. 5.
The finding of the trial Court on issue No.5 is also affirmed.
Issue No.7.
Vide order dated 13.2.1976 suit against the defendants No.5 to 8 was dismissed under Order 9 Rule 2 C.P.C. The other defendants could resist the suit and the plaintiff also could proceed with the suit against the other defendants. The dismissal of suit against defendants No.5 to 8 vide order dated 13.2.1976 and the order dated 1.12.1975 vide which defendants No.1 to 4 have been proceeded exparte, has no effect against defendant No.9 to resist the suit. This issue is also decided in favour of the defendant No.9 and against the plaintiff and the finding given by the trial Court on this issue is affirmed.
Issue No.8.
The finding of the trial Court on issue No.8 in favour of defendant No.9 and against the plaintiff is hereby affirmed as defendant No.9 is a bona fide purchaser for consideration without notice of the title of the plaintiff in the suit land. It is borne out from the record that defendants No.1 to 8 admittedly sold the land for consideration of Rs. 30,000/-. They being joint owners were in exclusive possession of the land. They passed on the possession of the land to defendant No.9 and defendant No.9 from his inquiry was satisfied that defendant No.1 to 8 were in exclusive possession by way of family partition and defendants No.1 to 8 had a right to sell the specific portion of the land to defendant No.9 and he purchased that land after bona fide inquiry.
47. In view of my discussion above, I do not find any force in this appeal and the same is hereby dismissed.