A stranger-transferee of a share in a dwelling house belonging to an undivided family is not entitled to joint possession or other common or part enjoyment of the house.

JUDGMENT :- The defendants 7 and 10 are in appeal against a confirming judgment of the learned First Additional Subordinate Judge of Cuttack in a suit for permanent injunction restraining those two defendant-appellants from jointly possessing the disputed house along with the plaintiff and the defendants 1 and 2.

2. The plaintiff claimed that he and the defendants 1 and 2 are the descendants of Arta. The defendants 3 and 12 are the descendants of Fakir and Khosali. The plaintiff and the defendants 1 and 2 have no connection with the other defendants. Plot No. 1619 accommodates the family residential house and plot No. 1618 is the Ban. There is a tank on plot No. 1630 adjacent to the further north of plot No. 1618. All these three plots, namely, plots Nos. 1618, 1619 and 1630 constitute the homestead. In the current settlement record-of-rights, Lofan, Jogi, Bhogi and Bhikari were recorded in respect of half share and the defendants 3 and 12 were recorded in respect of the other half in these plots.

The plaintiff alleges that there had been a complete partition between Arta and the ancestors of the defendants 3 and 12 in regard to plots Nos. 1618 and 1619. The tank had not been partitioned, but for convenience, the eastern ghat was being used by the plaintiff and the defendants 1 and 2 while the northern ghat was being used by the defendants 3 to 12. The defendant No. 1 alienated his 1/3rd share in the properties now in dispute along with other properties to defendants 7 and 10 under a registered sale deed dated 4-10-1955, for an alleged consideration of Rs. 1,000/-. These transferee-defendants are about to take forcible possession of a part of the homestead on the plea that it represents the 1/3rd share sold to them. The transferee defendants are strangers and are not entitled to joint possession with the plaintiff and are also not entitled to interfere with the possession of the plaintiff.

3. The defendants 7 and 10 only contest. It is contended that the suit in its present form without asking for declaration of title was not maintainable. The purchaser defendants had already taken possession and therefore, there can be no injunction against them. According to the written statement, the defendants 3 to 12 and the plaintiff and the defendants 1 and 2 are members of one family they having come from the common stock. Between the descendants of Arta, i.e., the plaintiff and the defendants 1 and 2, there had been an amicable arrangement and they were living separately since long and had also separated their residence, each living in a different house unconnected with the other. The defendant No. 1 had thus alienated his separate interest as well as his separate house in the year 1955 in favour of the alienee-defendants and ever since then, the alienees were in possession after making alterations and additions and even constructing a new structure. As the defendants 7 and 10 are not strangers to the family and as the plaintiff has a separate house, the defendants contend that the plaintiff has no cause of action.

4. The learned trial Judge came to find that the defendants 7 and 10 were not entitled to joint possession with the plaintiff in respect of the disputed homestead and they were thus liable to be ejected. He also found that there was no complete partition by metes and bounds between the plaintiff and the defendants 1 and 2 and they were all having a joint interest. The defendants 7 and 10 had purchased a part and parcel of the joint undivided dwelling house. The plaintiff was thus entitled to the benefit under Section 44 of the Transfer of Property Act.

5. The learned trial Judge, however found that the plaintiff and all the defendants came from the same common ancestor. On these findings he decreed the suit.

6. The defendants 7 and 10 appealed and that appeal of theirs came to be disposed of by learned First Additional Subordinate Judge. In the appellate court, the finding of the trial court that the parties were descendants fro