JUDGMENT :- This regular second appeal filed by Chander Bhan defendant is directed against the judgment and decree of learned Senior Subordinate Judge, Rohtak, whereby he reversed the decision of the trial Court and awarded a decree for declaration in favour of Jai Lal, plaintiff-respondent, that he was the exclusive owner of khasra No. 1582 and the same was not liable to be partitioned on the application of Chander Bhan.

2. The brief facts of this case are that Chander Bhan, Chaman Lal and Hira Lal, defendants 1 to 3, jointly owned land measuring 12 bighas and 3 biswas comprising khasra Nos. 1582, 1585, 1258 and 1362. Chaman Lal had one-third share in that land and as a co-sharer was in exclusive possession of land bearing khasra No. 1582 since long. Chaman Lal sold the land beating khasra No. 1582 to Jai Lal plaintiff by means of an oral sale on November 24, 1940 and a mutation, copy of which is Exhibit P. 1, was sanctioned on the basis of this sale in favour of the plaintiff on December 26, 1940, The plaintiff, accordingly, entered into possession of the land bearing khasra No. 1582. A suit to pre-empt the above sale was filed by Chander Bhan defendant but the same was dismissed on January 7, 1943. Chander Bhan defendant subsequently applied for partition of the land comprising khasra Nos. 1582, 1585, 1258 and 1362. Jai Lal plaintiff thereupon filed the present suit for declaration on the allegation that he was in adverse possession of land bearing khasra No. 1582 as an owner for over twelve years and that the aforesaid land was not liable to be partitioned.

3. The suit was resisted by Chander Bhan defendant who averred that the plaintiff was in possession of land bearing khasra No. 1582 as a co-sharer and that the aforesaid possession was not adverse. The material issue, which was framed, was to the following effect :

"Whether khasra No. 1582 is not liable to be partitioned on account of the allegation made in the plaint ?"

The trial Court decided the above issue against the plaintiff and held that the transfer in favour of the plaintiff was subject to adjustment at the time of partition. On appeal the learned Senior Subordinate Judge reversed the finding of the trial Court and held that the plaintiff was in adverse possession of the land in dispute since the date of the sale in his favour.

4. I have heard Mr. G.C. Mital on behalf of the appellant and Mr. R.S. Mittal on behalf of the plaintiff-respondent, and am of the view that the decision of the lower appellate Court cannot be sustained. From the resume of facts given above it would appear that defendants 1 to 3 jointly owned land measuring 12 bighas and 3 biswas comprising khasra Nos. 1582, 1585, 1258 and 1362. Chaman Lal defendant No. 2, who was in exclusive possession of land bearing khasra No. 1582 as a co-sharer sold it to the plaintiff. This sale could only be subject to adjustment at the time of partition of the entire joint land. As Chaman Lal was a co-sharer in the land, the position of the plaintiff, who was a transferee from Chaman Lal, could not be better than that of a co-sharer. As such the plaintiff could not claim adverse possession over the land transferred to him in the absence of any overt act of which there is no proof on the record. It is significant that when Chaman Lal transferred the land comprising khasra No. 1582 he did so as a co-sharer and the mutation, which was entered in favour of the plaintiff, was only in the column of cultivation and not in the column of ownership. In the circumstances, he could not become the sole owner of the land in dispute by adverse possession. I am fortified in the above conclusion by a long chain of authorities. In Mam Raj v. Chhotu, AIR 1933 Lah 763(1), it was held by a Division Bench. (Shadi Lal, C.J. and Abdul Qadir, J.) that there can be no adverse possession by one co-owner against another co-owner, and that the same principle, applies to the case of a transferee from a co-owner. Ram Rajs case, AIR 1933 Lah 763(1

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