When a co-sharer transfers their undivided share, the purchaser and other co-sharers should enjoy the land jointly as per their shares, and the plaintiff has the option to enjoy the property jointly or seek partition and separate possession.

1. The trial Court passed a decree in Regular Civil Suit No. 140 of 1990 on 26.02.1999. The operative portion is reproduced below.

"1. The suit is decreed with costs.

2. It is hereby declared that sale deeds executed by defendant No. 5 Murlidhar in favour of defendant No.1 Ananda, defendant No. Badraji and defendant No. 4 Suresh on dated 03.11.1988 and 25.05.1985 respectively are null and void and not binding upon the plaintiff. The sale deed dated 22.02.1988 executed by defendant No. 4 Suresh in favour of defendant No. 2 Kamlabai is null and void.

3. The defendant Nos. 1 to 3 do deliver the possession of suit fields to the plaintiff on or before 31.03.1999.

4. The defendant do pay the costs of the suit to the plaintiff and bear their own costs.

5. Decree be drawn accordingly".

2. The lower appellate Court has modified the aforesaid decree in Regular Civil Appeal No. 38 of 1999, on 06.10.2001. The operative portion of the judgment of the appellate Court is reproduced below.

"The appeal is allowed partly. The judgment and decree dated 26.02.1999 passed by the learned Civil Judge (J.D.) Karanja in R.C.S. No. 140/90 is hereby set aside. Suit of the plaintiff i.e. R.C.S. No. 140/90 is decreed partly as under. Suit sale deeds executed by defendant no.5 Murlidhar in favour of deft. Nos. 1, 3 and 4 and the suit sale deeds executed by deft. No. 4 in favour of deff. No. 2 Kamalabai are null and void except to the extent of share of deft. No.5 Murlidhar. Suit is dismissed so far as relief of recovery of possession of suit land is concerned. In the peculiar facts and circumstances of the case, no order as to cost. Decree be drawn accordingly".

3. In this second appeal, this Court has framed the substantial question of law as under;

Was the learned first Appellate Court right in holding that the Appellant should have filed a suit for partition and separate possession or to hold the property jointly with the respondent Nos. 1 and 2?

4. Both the courts are concurrent in holding that the suit property is the ancestral property of the plaintiff and defendant No. 5 along with defendant Nos. 6 to 8. It is reported that original defendant Nos. 6 to 8 have executed relinquishment deed in favour of the plaintiff in respect of the suit property. The defendant No. 5 – Murlidhar Mahadeo shitaye, the son of the plaintiff, has sold this property and those sale deeds are held to be not binding upon the plaintiff by both the Courts below. In para 11, the lower appellate Court has held as under.

"It is settled law that when cosharer transfers his undivided share then purchaser of that undivided share and other cosharers should enjoy the land jointly as per their shares. Purchaser cannot compel for partition to the other cosharers. However, if cosharers desires, they may ask partition and separate possession of the suit land to the extent of their shares. Here in the present case, in view of admitted facts, plaintiff being one of the cosharer has two remedies namely either he may enjoy the suit land jointly with defendant Nos. 1 to 4 or he may ask partition and separate possession of suit land to the extent of his share in suit land".

5. In view of above, the lower appellate Court was right in holding that the appellant should have filed suit for partition and separate possession or to hold the property jointly with respondent nos.1 and 2 – the original defendant Nos. 2 and 3. It is also open for the appellant/plaintiff to claim an injunction in such a suit to restrain the defendants from interfering with his joint possession in the suit property. The question of law is answered accordingly.

In the result, there is no substance in the appeal.

The same is dismissed. No order as to costs.