Mahendra Dayal,J.

The plaintiff-appellant Asghari Begum has filed this second appeal assailing the judgment and order dated 29.05.1981 passed in Civil Appeal No.196/1996, whereby the appeal was partly allowed and the judgment and decree of the learned trial court passed in Suit No.244/1964 was set aside.

2. The brief facts are that the plaintiff-appellant Smt. Asghari Begum brought a suit for partition against the respondents-defendants in respect of the house in question. The case of the plaintiff-appellant was that her share in the house in suit is 4/5 share while she had purchased 3/10 share from custodian. The rest half share was obtained by her by means of an oral gift deed and inheritance. The original defendant No.2 in the original suit had also purchased 1/5 share from custodian and had sold the same to the original defendant No.1, who demolished the house in part but tried to take possession over the entire house. This again on the part of the original defendant No.1 promoted the plaintiff-appellant to file a suit for partition. The original defendants No. 2 to 11 did not contest the suit and allowed the same to proceed against ex-parte. However, the defendant No.1 contested the suit merely on the ground that the house in question was constructed by Hamid Ali Khan and Sadiq Ali did not live there. It was further alleged that Hamid Ali Khan alone had been in possession. Mohd. Hassain Khan inherited full share from his father. He has sold the entire house to him on 29.08.1964. It was also pleaded that the suit was barred by limitation.

3. Learned trial court framed two issues and by means of judgment and decree dated 14.10.1965, the suit was decreed in respect of 133/360 and 2/50 share of the plaintiff-appellant in the entire house in dispute. Feeling aggrieved by the aforesaid judgment, an appeal was filed which was numbered as Appeal No.285/1965. This appeal was allowed and the judgment of the learned trial court was set aside. The matter was remanded to the trial court for a decision afresh. It was also directed by the learned first appellate Court to implead Smt. Tahira Begum as widow of the defendant.

4. After remand of the case, Smt. Tahira Begum was impleaded as widow of the defendant and the trial Court again by means of judgment and decree dated 05.09.1966 decreed the suit in respect of 953/1800 share of the plaintiff-appellant. This judgment was again challenged by way of Civil Appeal No.196/1966 and the learned first appellate Court this time allowed the appeal partly and the judgment of the trial court was modified to the extent that plaintiff-appellant had only 133/360 share in the house in question. For rest of the claim, the suit was dismissed. It is against this judgment and decree that the plaintiff-appellant has preferred this second appeal.

5. The second appeal was admitted by this Court on the following substantial question of law: -

"Whether the sale of a share in the property in favour of a co-sharer who is already in possession of the property would still required possession to validate the sale?"

During the pendency of second appeal, the original plaintiff-appellant Asghari Begum died and in her place Barkat Ali and Azmat Ali were impleaded. The respondent No.1 also died and his legal heirs were also substituted. Respondents No.11, 12, 13, 14,17, 18 and 19 also died during pendency of the second appeal and their names were deleted by the appellant with the permission of this Court.

6. I have heard Shri Mohd. Arif Khan, learned Senior Advocate appearing on behalf of appellants assisted by Shri Mohd. Aslam Khan and Shri M.A. Siddiqui, learned counsel for the contesting respondents.

7. It has been argued by the learned Senior counsel appearing on behalf of the appellants that the learned first appellate court has partly allowed the appeal only on the ground that the sale of a part of the property by custodian in favour of the plaintiff-appellant was not a valid sale and, therefore, no title