A co-owner in possession of a common land can transfer by way of lease, sale or gift any specific portion of the common land in his exclusive possession for time being, provided always that ha does not take more than his share. Such a transfer is not legally invalid or void so as to entitle the other co-owners to obtain khas possession of the joint land by eviction of the tenant.

Kanhaiya Singh, J.

1. This is a plaintiffs Second Appeal from the judgment of Mr. Muhammad Ataur Rahman, Additional Subordinate Judge, Ranchi, dated the 31st March, 1949, reversing a decision of Mr. Maheshvary Sahay, Additional Munsif, Ranchi, dated the 30th November, 1943.

2. The plaintiffs instituted this suit for possession of 3.08 acres of land comprised in Survey plots Nos. 564, 565, 566 and 2489 under khata No. 141 in village Lawagain. It is common ground that the plaintiffs and defendants Nos. 1 to 7 are descendants of the common ancestor, Sukra Jogia Uraon, defendant No. 1, in the first instance executed in favour of Allah Bux, defendant No. 10, a usufructuary mortgage bond dated 9-3-1943 for a consideration of Rs. 100/-hypothecating thereby the disputed land and thereafter transferred to defendant No. 9 plot No. 2489 for a consideration of Rs. 100.00 by virtue of a registered sale-deed dated 28-5-1948, exhibit. B, and to Mahadeo, defendant No. 8, plot No. 566 for a consideration of Rs. 100.00 by another registered sale-deed dated 24-1-1944, exhibit B-1.

The lands comprised in Khata No. 141 are the ancestral raiyati lands of the plaintiffs and defendants Nos. 1 to 7 and have been jointly recorded in their names or their ancestors in the record-of-rights. There is no dispute about this. The plaintiffs sought ejectment of defendants Nos. 8 to 11 and joint possession of the disputed lands with defendants Nos. 1 to 7 on the ground that though the plaintiffs and the defendants were, by an arrangement among themselves, in separate possession of different plots for the sake of convenience, the joint family properties had not been partitioned between them by metes and bounds, and, therefore, defendant No. 1 had no right- to alienate any portion of the joint properties and to confer an exclusive right on defendants Nos. 8 to 11 by the sales without the consent of the co-owners since such transfers were invalid for want of competency.

3. The main contesting defendants were defendants Nos. 8 and 9 who filed separate written statements. They admitted that they had purchased plots Nos. 566 and 2489, respectively, from defendant No. 1. They laid, however, no claim to the other two plots in dispute. Their defence was that the plots purchased by them constituted the separate and exclusive properties of defendant No. 1 and that he had every right to dispose of them. They denied that the properties were still joint and contended that the plaintiffs and the defendants were separate and the properties which had been joint family properties had been divided 30 years back between Bandhua Uraon, Sukra Uraon, Bhaura Uraon and Perwa Uraon and that in that partition the disputed plots were allotted exclusively to Perwa Uraon, the father of defendant No. 1. The other defendants filed written statements separately, defendants Nos. 2 to 7 supporting the plaintiffs case and defendants Nos. 10 and 11 supporting the defence set up by defendants Nos. 8 and 9.

4. The learned Munsif held that the joint family properties of the plaintiffs and defendants Nos. 1 to 7 had not been divided amongst them by metes and bounds and that their separate possession of different plots was by reason of a private arrangement for the sake of convenience in cultivation. The conclusion reached on these findings was that defendants Nos. 9 and 10 had derived no title by virtue of the purchase from defendant No. I. This conclusion he had arrived at on the strength of the two decisions of the Allahabad High Court in Jamna V/s. Jhalli 55 Ind Cas 94: (AIR 1920 All 111) (A) and Mohammad Sher Khan V/s. Bharat Indu 106 Ind Cas 656: (AIR 1928 All 59) (B).

In his opinion, it is not permissible for one co-sharer in separate possession of a common land to alienate to a third person, as his own exclusive property, the portion which he has been occupying by agreement with his co-owners and till partition takes place no co-sharer is entitled to say that he has an exclusive right t