S. Barman, J.
1. This appeal filed by defendants arises out of a suit filed by the plaintiff for partition. The suit property consists of three plots namely, 1210 (Bari land) 19 decimals, 1211 (home stead Ghara) 2 decimals and plot No. 1212 (Gahira) 3 decimals--the total area being 24 dec.
2. One Laxman Pattal had 2 sons Basi and Sunakar. Basil's son was Bauri and plaintiff Sudarsan is the son of Bauri. Thus plaintiff represents Basil's branch of family. Suna's son was Banchhanidhi; defdts 1 and 2 are the sons of Banchhanidhi. Thus defendants 1 and 2--Panu and Bishnu respectively represent Suna's branch of family.
3. The plaintiff's case is that two branches of Basu and Suna were joint; after the death of Basu's son Bauri, Suna's son Banchhanidhi became the karta of the family. In 1932, out of plot No. 1210, 8 decimals were sold by both the branches to two different persons namely Kumar Sahu and Gajendra Sahu who are not parties in the suit. In 1937, Banchhanidhi sold by Ext. 1, 6 decimals for Rs. 12 out of the entire three plots to one Sk. Gafur. Sk. Gafur is said to have sold the said G dec. to one Abdul Rahman. In 1950, defendant No. 1 purchased the said G decimals from Abdul Rahman by a registered sale deed Ext. 2. In 1961, the plaintiff filed the suit for partition claiming half share in the entire suit properties except 8 decimals sold to the Sahus that is to say the plaintiff claimed half of the remaining 16 dec. of the suit properties.
4. The defence to the suit is that there was already a partition, the suit for partition is not maintainable; sale of 6 decimals by Banchhanidhi as Karta in 1937 cannot be assailed in this suit for partition.
5. The trial Court dismissed the suit for partition on the finding that there was a prior partition. In appeal, the learned lower appellate Court found that there was no partition, in any event the sale of 6 decimals of land by Banchhanidhi in 1937 was not for legal necessity. The learned lower appellate Court passed a decree in favour of the plaintiff giving 50 per cent share in the suit property and directed the Commissioner to carve out the same and he was also directed to allot 6 decimals of land purchased by defendant No. 1 into the share of the defendants. It is against this decision of the learned lower appellate Court that the defendants have filed the second appeal.
6. The points urged on behalf of the defendants-appellants are these: The six decimals of land which was initially sold by Banchhanidhi in 1937 under Ext. 1 to Sk. Gafur ultimately was purchased by defendant No. 1 under Ext. 2 in the year 1950. It was contended on behalf of the defendants-appellants that though the plaintiff had filed a suit in the garb of a partition suit but in substance he wanted to avoid sale of 6 decimals of land in 1937 by Banchhanidhi. The defendants' point is that the claim for the said 6 decimals of land was barred by limitation. It was further submitted that the sale in 1937 by' Banchhanidhi was for legal necessity, the sale was not void but only voidable; the said sale having not been challenged within 12 years of the sale it cannot now be challenged in the present suit filed in 1961, i.e., more than 12 years after the sale.
7. In support of their contention, the defendants relied on a decision of the Madras High Court in Raja Ramaswami v. Govindamal, AIR 1929 Mad 313 wherein it was held that:
'It is not the form of the relief claimed which determines the real character of the suit for the purpose of ascertaining under which articles of the Limitation Act the suit falls. Though the relief claimed in the suit is possession of immovable property yet if the properly sued for is held by the contesting defendant under a sale or other transfer which is not void, but only voidable, and he cannot obtain possession without the transfer being set aside, the suit must be regarded as one brought to set aside the transfer though no relief in those terms is prayed for, but the prayer is only for possession of the property.'
The defendants however conceded to a partition of the remaining 10 decimals.
8. The only question is: Are the said 6 decimals of land sold by Banchhanidhi in 1937 now available for partition between the TWO branches of the family? The finding of the learned lower appellate Court is that the sale under Ex. 1 by Banchhanidhi in 1937 was not for necessity. The reasoning on which he gave this finding as stated in paragraph 8 of the judgment is this:
'Ext. 1 (registered sale deed executed on January 30, 1937) on the other hand discloses that the sale was effected for sending Banchha-aidhi's youngest sister to her father-in-law's house. This cannot mean as family benefit so as to bind the plaintiff as the genealogical tree discloses that plaintiff's grand-father and defendant's grand-father were two brothers and any such necessity which was for any particular branch cannot be thrust upon other branch in presence of the distinct shares......'
There is thus a clear finding by the learned lower appellate Court that the sale by Banchhanidhi was not for legal necessity on his appreciation of the evidence as discussed therein. So in this partition this 6 dec. of land sold by Banchhanidhi must be treated as having been allotted to the share of Banchhanidhi. It is on this reasoning that the learned lower appellate Court came to the finding that this 6 decimals of land purchased by defendant No. 1 be allotted to the share of defendants.
9. In the present context, the decision of the Madras High Court cited above as relied on by the defendants-appellants herein has no application. Here it is a simple suit for partition of joint family properties. The disputed 6 decimals were found to have been sold by Banchhanidhi without legal necessity. Therefore, the learned lower appellate Court rightly found that the said 6 decimals should be allotted to Banchhanidhi's branch of family; the plaintiff's branch is not to suffer by reason of the sale by Banchhanidhi which was not for legal necessity.
10. In this view of the facts and circum stances of the case as stated above, the decision of the learned lower appellate Court isupheld. The appeal is dismissed with costs.