( 1. ) THIS appeal is at the instance of defendants calling in question judgment and decree dated 4-8-1995 passed in C. S. No. 31-A/1992 by 5th Addl. Judge to the Court of District Judge, Sagar.

( 2. ) PLAINTIFF has filed suit for declaration that the House No. 53 owned by the plaintiff, the defendants have no concern with it. Prayer was also made to restrain defendants from interfering with plaintiffs possession. Genealogical tree indicates that one Rewa Ram had four sons; Baijnath (defendant No. 1), mohanlal, Umashanker (defendant No. 2), Lakhanlal (defendant No. 3 ). Beni bai was the wife of Rewa Ram. Rewa Ram died on 25-8-1973 and Beni Bai in the year 1980. Mohanlal has left behind widow; Dayawanti; plaintiff No. 2 and rajesh Kumar; plaintiff No. 1. It is also not in dispute that the sale-deed (P-1) was executed by Baijnath (defendant No. 1) in favour of Mohd. Nisar on 18-10-1989. Uma Shanker (defendant No. 2) also sold portion of the suit house to Mohd. Nisar as per sale-deed (P-2), dated 12-9-1990.

( 3. ) PLAINTIFF averred that Rewa Ram obtained the house in question in partition with his brother Dayaram in the year 1970. It has been renumbered as house No. 53 situated at Dayanand Ward, Sagar. Defendant Nos. 1 to 3 were in the service of Railways and used to reside at Jhansi. They never remained in possession of the suit house. As Mohanlal, his wife and son looked after the deceased Rewa Ram in his life time he has given the house by way of an oral gift to them in 1972. Thereafter their possession became as owner. The factum of an oral gift was informed to the defendant Nos. 1 to 3, thus, there was an ouster. Plaintiff has remained in adverse possession as such right, title and interest of the defendants if any has been extinguished. The sale-deeds executed by Baijnath and Umashanker in favour of Mohd. Nissar were illegal and void and Mohd. Nissar was not entitled to enter into possession of a specific portion of the property on the strength of illegal and void sale-deeds. Hence, suit has been filed.

( 4. ) DEFENDANT Nos. 1 to 3 in their written statement denied the factum of oral gift and contended that the house in question was partitioned on 25-12-1987. Thereafter parties have remained in separate possession of the property, deed of partition was executed at Jhansi with the consent of four brothers. The plaintiff wanted that even after partition the house to be sold with their consent. Obtaining of the plaintiffs consent was not necessary.

( 5. ) THE defendant No. 4 Mohd. Nissar in his separate written statement submitted that he has purchased the portion of the house after making due enquiry and was placed in possession. He was a bonafide purchase for value. Suit was not properly valued.

( 6. ) TRIAL Court has found that there was no oral gift made by Rewa Ram in favour of Mohanlal, Dayawanti and Rajesh Kumar, plea of adverse possession set up by the plaintiff has also been negatived, specific portion of the property could not have been alienated by Baijnath and Umashanker to Mohd. Nissar as per the sale-deed (P-1 and P-2) as there was no partition as claimed by the defendant Nos. 1 to 3 in the year 1987, the sale-deeds (P-1 and P-2), dated 18-10-1989 and 12-9-1990 have been held to be illegal and void, suit has been partially decreed. This appeal has been preferred by Mohd. Nissar assailing the judgment and decree passed by the Trial Court.

( 7. ) SHRI K. N. Agrawal, learned Counsel appearing with Shri R. K. Hora, advocate on behalf of the appellant has submitted that District Sagar formed the part of erstwhile Central and Berar Provinces and in Central and Berar provinces, Bombay School of Mitakshara Law is applicable, as per the law it is permissible to a coparcener to sell his undivided share without consent of non-alienating coparcener. In the instant case possession was handed over to the purchaser by Baijnath and Umashanker and the share in possession of the purchaser is not more than the share of alienating