In the context of Section 90 of the Indian Trusts Act, a co-owner must avail themselves of their position as such to gain an advantage in derogation of the rights of other persons interested in the property, or as a representative of all persons interested in the property, gain an advantage, for the principle of Section 90 to apply.

U.N.Sinha, J.

1. This appeal has been filed by an intervenor defendant and it arises out of a suit instituted by the plaintiffs for declaration of title to and for confirmation of their possession over 12 kathas and 2 dhurs of land and in the alternative for recovery of possession over the land. The relevant facts are as follows. One Hasan Ali had a holding of 2 bighas 17 kathas and 8 dhurs of land and he died leaving his widow and three sons. Some of the landlords had instituted a suit for realisation of arrears of rent against Hasan Alis heirs and the suit had been decreed. The decree was put in execution and the holding was sold in auction on the 1st February, 1937. The decree-holders purchased the land and took delivery of possession on the 2nd July, 1937. On 24th January, 1938. one of the sons of Hasan Ali, named Siddique, took settlement of 2 bighas 4 kathas and 8 dhurs of land out of the original holding of Hasan Ali from the auction-purchasers by a registered document. Siddique also claimed to have taken oral settlement of 6 kathas and 12 dhurs of homestead land from the same auction-purchasers. Subsequently on 7th June, 1952 Siddique sold the disputed land to the plaintiffs by a registered document. Apparently there was some mistake made in mentioning the boundaries and therefore a second sale-deed was executed by. Siddique in favour of the plaintiffs on 23rd October, 1957. The plaintiffs contended that the landlord auction-purchasers had come into possession of Hasan Alis holding and Siddique had come into possession of the land settled with him and so the plaintiffs had also got possession from 7th June, 1952. It was alleged that another son of Hasan Ali, named Imdad, had gone away to Pakistan and on his return he started interfering with plaintiffs possession over the disputed land. Ultimately a proceeding under Sec.144 of the Code of Criminal Procedure was drawn up and it was decided against the plaintiffs. Hence, this suit had to be instituted. Originally Imdad, defendant No. 1, had contested the suit until the present appellant came in picture by purchase from him on 12th September, 1959, during the pendency of the suit in the trial Court. The inter-venor defendant appellant supported Im-dads case.

The suit was decreed by the trial Court and on appeal the decree was affirmed.

Thereafter, the intervenor defendant filed Second Appeal No, 1094 of 1963 in this Court and by judgment passed by this Court on 9th August, 1965, the appeal was dismissed. The main point which had been argued on behalf of the intervenor defendant in the second appeal in question was on Section 90 of the Indian Trusts Act and the only point that has been raised in this appeal is based on that section alone. Before I deal with the contention raised by the learned counsel for the appellant based on Section 90, I may mention the findings which have been arrived at by the learned single Judge of this Court. The learned Judge has held that nothing had been shown to him from which an inference can be drawn that Siddique was in collusion with the landlords who were the auction-purchasers. The learned Judge has held that there was nothing in the case to show that Siddique had managed to take settlement of the disputed land from the landlords auction-purchasers by availing himself of his poistion as a co-sharer. It has also been mentioned that there was no material on record to indicate any collusion between Siddique and the landlords in bringing about the auction sale in question. - In those circumstances it has been held that the principle of Section 90 had no application. Section 90 of the Indian Trusts Act may be quoted: "Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself oJ; his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any a