JUDGMENT

Bhide, J. - Letters Patent Appeals Nos. 91 and 92 of 1939 arise out of two suits of which the facts were similar and it will be convenient to dispose of them together. The material facts were briefly these: The plaintiff in these suits was a cosharer in an undivided holding along with the defendants. The defendants were in possession of two khasra numbers, viz., 959 and 1360, measuring 8 and 13 marlas. They sold these khasra numbers to two persons named Churamani and Sukh Dev respectively. Thereupon the plaintiff sued for possession of one-fifth of these numbers on the ground that the defendants were only cosharers in these khasra numbers and they had, therefore, no right to transfer the entire numbers as they did. The defence was that as the vendors were in exclusive possession of these numbers and as their possession could not be disturbed until partition, the transferees also acquired the same rights and the possession of the transferees could not be disturbed till partition. The trial Court rejected this plea and the plaintiff was given decrees for joint possession in both the suits. The defendants appealed and the learned Senior Subordinate Judge upheld their plea and dismissed his suits. On second appeal, however, the learned Judge in Chambers has again restored the decrees of the trial Court and from this decision the defendants have preferred the present appeals under Clause 10, Letters Patent.

2. The sole point for decision is whether a cosharer in a joint holding, who is in exclusive possession of a certain plot of land, has a right to sell the same, and if so whether the transferee has a right to remain in possession of such a plot until partition. It is not disputed on behalf of the respondent that the defendants could sell their share (or any fraction thereof) in the holding; but it is contended that no cosharer is entitled to sell any specific plot as he is not the sole owner thereof. In support of this contention the learned Counsel relied chiefly on three rulings of the Allahabad High Court, viz., Jamna v. Jhalli. , Mahomed Sher Khan v. Bharat Indu. and Qutubuddin v. Mangala Dubey. .

3. The facts of the present oases seem to be however distinguishable as the defendants in selling the plots did not assert that they were exclusive owners thereof. The learned Judge in Chambers has remarked in his judgment that there was an assertion of exclusive title by the defendants in the present suits by sale of specific plots. But this does not appear to be correct. No sale deeds were executed; and it appears from the mutations that the defendants merely purported to transfer their interest in these plots as cosharers. As cosharers they had a right to remain in possession of these plots till partition subject to adjustment at the time of partition and they seem to have transferred the same right to the vendees. This is indicated by the fact that the sale is shown in the column of cultivation and not in the column of proprietorship according to the rules governing mutation proceedings. Moreover, the defendants have made it clear in their written statements also that they only claim to hold the plots sold "until partition subject to the rights of the other cosharers and subject to adjustment at partition. If the defendants merely transferred the plots subject to the rights of the other cosharers and subject to adjustment at the time of partition," it is difficult to see how the rights of the other cosharers can be prejudiced in any way. It is well settled that if a cosharer is in established possession of any portion of an undivided holding, not exceeding his own share, he cannot be disturbed in his possession until partition (see Karam Chand v. Karam Dad Khan. AIR 1938 Lah 465 and the other rulings cited therein).

4. As a result, it has been held that a cosharer who is in such possession of any portion of a joint khata, can transfer that portion subject to adjustment of the rights of the other cosharers therein at the ti