A purchaser from a co-owner of undivided property cannot claim exclusive possession of a portion without partition.

1. This is defendants' first appeal u/S.96 of the Code of Civil Procedure , against the judgment and decree dated 6-5-1985 passed by Shri A.N. Thakur, VIth Additional Judge to the Court of District Judge, Jabalpur, in Civil Suit No. 2 - A of 1978, directing them to deliver vacant possession of area 36885 sq. ft. of land of plot No. 434, Gorakhpur, Jabalpur together with costs.

2. The facts of the case tell the unfortunate history of family feud and love. Labourlost between two sisters. One Shir P.S. Chouhan, an Indian Christian, admittedly owned vast properties including houses, out - houses and 5.74 acres of open land at Gorakhpur, Jabalpur. He was unmarried and issueless and, therefore decided to give - away the said properties to his two sisters, Mrs. Dayabai Lakshmanan and Mrs. Grace Pritabai Morris, in equal shares and for that purpose executed a registered gift deed on 8-4-1935. Mrs. Dayabai Lakshmanan is now survived by appellants Nos. 2, 3 and 4 while Mrs. Grace Pritabai Morris is survived by appellant No. 1 and respondent No. 3, her two daughters. There had been no partition between two sisters of Shri P.S. Chouhan and, therefore, the properties continue to be joint and undivided between them. It, however, appears that two daughters of Mrs. Grace Pritabai Morris i.e. appellant No. 1 and respondent No. 3 partitioned their shares after her death. Partition deed (Ex. D / 3) gives her entire share in 5.74 acres of agricultural fields to the appellant Mrs. Lalita James. It, however, appears that the arrangement contained in this deed was subsequently amended by partition - agreement (Ex. P - 4) whereby 27662 sq. ft. to the West and 36885 sq. ft. to the North of plot No. 434 was given to respondent No. 3 Mrs. O.N. Park. In this agreement it was specifically mentioned that a portion of plot No. 434 had been jointly sold by two sisters on 7-6-1950 who have also shared the sale proceed by mutual agreement. After this agreement the respondent No. 3 had been selling her share to various parties. She sold 27662 sq. ft. situate at the Western side of the plot No. 434 to Kailash Housing Co - operative Society on 21-1-1963. She also sold 36885 sq. ft. situated at the North of plot No. 434 to respondent No. 2 on 10-8-1964 for a valuable consideration of Rs. 14,000/- by registered sale - deed. The sale - deed has not been filed or exhibited, and therefore, it is not possible to ascertain details thereof. It appears that a true - copy of the sale - deed was filed before the trial Court on 17-11-1971 and the same is available at pages 87 to 89 to file C - 2 of the trial Court. From the aforesaid sale - deed, it appears that sold piece of land measuring 36885 sq. ft. is a part of plot No. 434 bearing the present plot No. 434/5, Mouza Gorakhpur, Jabalpur. From the descriptions of the sold plot given in the sale - deed, it appears that it is, surrounded by diversion plots Nos. 276, 277, 278 and 279 on the North; open land of Mrs. Lalita James at the South - West; quarters of Mr. Shriyastava, Ajit Das and Arun Kumar Das, at the East and diversion plots Nos. 273 and 432 at the West. From the sale - deed (para - 1) it appears that this plot is recorded as Plot No. 434/2 in Revenue Case No. 4 of 1961-62 which the vendor has explained to be an error. The respondents - plaintiffs allege that after purchase they started digging foundation on a part of the suit land to raise structure on it when one Shri Balram claiming to be the agent of appellant No. 1 objected to the same. The said Balram asserted possession of appellant No. 1 over the suit plot and, therefore, they filed the Civil Suit No. 9 - A of 1970 in the Second Civil Judge Cl