JUDGMENT

1. This is an appeal by the plaintiff under Section 12(2), Oudh Courts Act, against the decree of a single Judge of this Court allowing the defendants' appeal and dismissing the suit. It is necessary to mention the following facts: In 1899 there was a partition of village Salempur at which two mahals, one mahal Nizam-ud-din and the other mahal Baqia Rahim-un-nissa were formed. Although plot No. 342 of the third settlement fell in mahal Nizam-ud-din yet the heirs of Mir Khurshed Ali, who were cosharers in mahal Baqia Rahim-un-nissa, i. e. respondents 2 to 4 and father of respondents 5 and 6 remained in possession of it. In 1901 Nizam-ud-din, who was a cosharer in mahal Nizam-ud-din, filed a suit for the recovery of that plot against the heirs of the said Khurshed Ali. Two deeds of exchange were executed, one by each party and the suit was compromised, the result of which was that the heirs of Khurshed Ali were allowed to retain possession of plot No. 342 and Nizam-ud-din got plot No. 140 of mahal Baqia Rahim-un-nissa in exchange. In 1923 Nawab Ali and his sisters executed a sale deed in respect of a certain share in mahal Baqia Rahim-un-nissa in favour of Wajid Ali, respondent 1. Thus, Wajid Ali became a cosharer in mahal Baqia rahim-un-nissa to the extent of the share purchased by him. Nawab Ali was the lambardar of mahal Baqia Rahim-un-nissa till 1933 when respondent 1 became the lambardar. He filed a suit for arrears of rent against one Tilak, who had been occupying plot No. 140 for a long time as a tenant and this claim was decreed whereupon the plaintiff filed a suit which has given rise to this appeal. The relief claimed in the plaint was to the following effect:

A declaratory decree to the effect that the plaintiff is the owner and in possession of plot No. 140 having an area of 18 biswas out of 1 Bigha 15 biswas and that defendant 1 had no right of proprietorship in it.

2. The plaintiff's case was that his transferors were the exclusive owners of the plot in dispute and that the plaintiff was in exclusive possession of it. It was further claimed that the plaintiff had become owner of the plot in suit by adverse possession for more than 12 years. On the question of adverse possession the first two Courts decided against the plaintiff and so did the single Judge of this Court, who heard the second appeal, and that point no longer survives for discussion. On the question of title it was held that the transferors of the plaintiff were not the sole owners in the plot in dispute. On the question of the exclusive possession of the plaintiff the trial Court held that the plaintiff was not in possession of the plot in the right of a cosharer, and that Nawab Ali, the lambardar, had direct-ed the tenant (i.e. Tilak) to pay rent of the plot to the plaintiff during the period he was lambardar. In the eye of the trial Court such possession of the plaintiff by realization of rent from Tilak was not an exclusive possession in the capacity of a cosharer. In the result the trial Court dismissed the suit.

3. The first Appellate Court assumed without discussion that the possession of the plaintiff was exclusive by virtue of the deed of exchange in 1910 in his favour. Applying the principle laid down in Jalaluddin Khan v. Rampal (1927) 14 AIR Oudh 467, it allowed the appeal and decreed the plaintiff's suit. Here it may be noticed that on the finding given by the first Appellate Court that the plaintiff was not the sole owner of the plot, the decree in terms of the relief was not justified. In second appeal the learned Judge of this Court held that the transfer by some of the cosharers only of the specific plot of land belonging to the undivided mahal is not allowed by law and therefore the plaintiff did not become a cosharer in it by virtue of the deed of exchange. He quoted a case of the Allahabad High Court in Adit Singh v. Rai Bindayal Sahu AIR 1936 All 456, the purport of which is that a cosharer in an undivided mahal cannot ali