MOHD TAHIR Vs. SARDAR BANO

JUDGEMENT

(1.) This is an appeal by the 1st defendant in a suit for possession over a certain land. The plaintiff's allegations were that the two defendants, appellant and respondent 2 respectively, along with others, were co-sharers in this land, that in 1940 the same had been partitioned, that an area of 158 sq. yards had been given to defendant 2 (respondent 2) and that, on 24-8-1943, this defendant had under a registered deed of exchange transferred the same to the plaintiff who, in lieu thereof, had given to him, defendant 2, the property in schedule B of the plaint. The relief claimed was for possession over this 158 sq. yards of land by virtue of this exchange and, in the alternative, over the property in schedule B.

(2.) The defence of the appellant was that he and not the defendant 2, from whom the plaintiff claimed to have acquired this area, was the owner of the same, having been in long and absolute possession of it and that there had been no partition as alleged by the plaintiff in 1940.

(3.) The trial court decreed the suit only against defendant 2 in respect of the property in schedule B, but dismissed it as against defendant 1 in respect of the area of 158 sq. yards aforesaid. This was on the findings that defendant 2 and others were joint owners of the plot measuring 158 sq. yards, there having been no legal partition of the same, that for this reason the deed of exchange dated the 24-8-1943, was invalid and that the defendant 1 (appellant) had been in possession of this area only as a co-sharer and not adversely to the other co-sharers.