MAIIK, CJ.: - This case was referred to a Full Bench of seven Judges by reason of a conflict between certain decisions of the Chief Court at Lucknow and a decision of a Full Bench of five Judges at Allahabad.

2. The plaintiff filed a suit for joint possession over a Kothri marked in a plan attached to the plaint, for perpetual injunction restraining defendants 1 and 2 from interfering with the plaintiffs possession and enjoyment of the said Kothri, for declaration of his right to build a Sahadra which had fallen down and for recovery of Rs.70/- the price of the plaintiffs share of the materials of the Sahadra which, it was alleged, had been misappropriated by defendants 1 and 2. The suit was contested by defendants 1 and 2, and the other defendants were more or less pro forma.

3. The learned Munsif decreed the suit in part. On appeal by the defendants 1 and 2, the lower appellate Court set aside the decree of the trial Court and dismissed the plaintiffs suit in its entirety. When the second appeal came up before a learned single Judge, he referred the case to a larger Bench.

4. The plaintiff and defendants 1 and 2 are members of the same family being descended from a common ancestor Daryao. This family had an ancestral house in village Gurha, pargana Kamraon, district Rae Bareli. The common ancestor Daryao had seven sons, and one of his sons Baryar had five sons. Sadho was one of the sons of Baryar. He had two sons Baijnath and Jagannath. In the year 1896 there was a partition in the family and the Kothri and the Sahadra, according to the case in the plaint, fell to the share of Baijnath and Jagannath. Later in. his oral pleadings the plaintiff amended this statement and alleged that only half share in the Kothri and the Sahadra had fallen to the share of Baijnath and Jagannath. Baijnath and Jagannath had a share in the Zemindari in village Gurha. This share they had mortgaged on 21-11-1893.

The share ultimately was transferred for payment of the mortgage debt and came into the possession of one Mani Ram. Hazari Lal filed a suit for preemption and got possession of the property which had been transferred to Mani Ram. Defendants 1 and 2 are the sons of Hazari Lal, who was grandson of Baryar through another son Thakur. In the year 1910 Balgovind, defendant 6, and three widows, Mst. Jian, Mst. Lachhmin and Mst. Basanti, who had inherited 1/8th share in the half portion of the Kothri and the Sahadra from Baijnath and Jagannath, transferred their share to Bishunath, uncle of the plaintiff, and on the death of Bishunath the plaintiff inherited this portion. Besides this portion which the plaintiff claimed in the manner indicated above, the plaintiff had an ancestral share in the house with which we are not concerned.

5. The plaintiffs contention was that he was in possession of the Kothri and the Sahadra but in the year 1944 the Sahadra fell down and defendants 1 and 2 misappropriated the materials and also started interfering with plaintiffs possession of the Kothri which compelled the plaintiff to file the suit.

6. The main defence with which we are concerned is the plea that when Baijnath and Jagannath lost their entire Zamindari share in village Gurha, they must be deemed to have ceased to have any interest in the ancestral house, the Kothri and the Sahadra, which must be deemed to have passed to Mani Ram mortgagee and by pre-emption to the contesting defendants.

7. The trial Court held that Baijnath and Jagannath did not mortgage the whole of their interest in village Gurha, and they did not lose their entire Zamindari interest and therefore continued to remain owners of the Kothri and the Sahadra. The trial Court decreed the plaintiffs suit in part. The lower appellate Court, however, disagreed with this finding and relying on certain decisions of Oudh Chief Court held that Baijnath and Jagannath having ceased to own any Zamindari share in village Gurha, their interest in the residential house must also be deemed to have pa