A co-owner is entitled to mortgage his share in the property and the other co-owner cannot defeat the mortgage by treating the mortgagees as trespassers.

( 1 ) DEBI Singh, the appellant in the present case instituted a suit against the respondents for possession of the land in suit which measures 9 Bighas 2 Biswas and is situated in village Ladpur, Delhi. The defendants in the suit, who are respondents in the appeal, were Bhim Singh and Mehar Singh, who were in possession of the land and Khem Ram, who is the father of the appellant. The allegation in the plaint was that the plaintiff and his father were joint owners of the land in dispute, and the said Bhim Singh and Mehar Singh had entered into possession of the land some three years before the institution of the suit. Bhim Singh and Mehar Singh, respondents, as defendants Nos. 1 and 2 disputed the plaintiff s title. They alleged that Khem Ram alone was in possession of the land and he had mortgaged the same to them with possession and they were in possession of the land in their capacity as mortgagees. The trial Court decreed the suit on the ground that the defendants Nos. 1 and 2 were in possession of the land as trespassers. The reason for this was that the document on which they relied was unregistered. It was also held that the father of the plaintiff, Khem Ram, aforementioned, being only a co-owner of the land along with the plaintiff was not entitled to mortgage the land without the consent of his co-sharer. It was also held that it was not established that Khem Ram was in sole cultivating possession of the land as the Khasra Girdwari, Exhibits D-2 and D-3 showed that the plaintiff and his father were in joint possession of the land in suit as co-owners. On the basis that the appellant was entitled to dispossess the said Bhim Singh and Mehar Singh a decree for possession was passed against them.

( 2 ) BHIM Singh and Mehar Singh then appealed to the Senior Sub Judge, who came to the conclusion that it was clear that the land owned by the plaintiff and his father had been divided by them for the purposes of cultivation and that the area in suit had been in the sole possession of the father, who had himself let in defendants Nos. 1 and 2. The plaintiff not being in actual physical possession and his father having let defendants Nos. 1 and 2 into possession, it was held that the plaintiff could not be permitted to evict the said defendants without the settlement of the dispute between the father and his creditors. The Senior Sub Judge also felt that the son had been put up merely to dislodge defendants Nos. 1 and 2 from the possession of the land in suit. It was also held that as the plaintiff was not in actual physical possession before defendants Nos. 1 and 2 were let in, he was not entitled to a decree for possession of the land. The only relief that could have been granted was a decree for joint possession and actual possession could not be granted without the separation of the joint Khata. In the circumstances, the appeal was accepted and the suit was dismissed. Thereafter the plaintiff appealed to this Court.

( 3 ) MR. Ramesh Chandra on behalf of the alleged trespassers, Bhim Singh and Mehar Singh, has raised an interesting preliminary objection. He says that the concept of proprietorship of agricultural land has been abolished by the passing of the Delhi Land Reforms Act, 1954, as has been held by the Supreme Court in Hatti v. Sunder Singh, (1970) 2 SCC 841 = (AIR 1971 NSC 160 ). He says that the appellant is disentitled to get a decree for possession from the Civil Court and consequently, it should be held that the Civil Courts have no jurisdiction to grant the relief prayed for in the present suit. His further submission is that the appellant should seek his relief under the Delhi Land Reforms Act wherein provision has been made for a Bhumidar to evict a trespasser. I have given my anxious consideration to this objection. The alleged trespassers entered into the land, according to the agreed case of the parties, after the Delhi Land Reforms Act had come into force. At that time, no Bhumidari had been