K.M. Dayal, J.
1. The present appeal has been filed by the plaintiffs against the judgment and decree passed by the courts below dismissing their suit. Three plaintiffs filed the suit for cancellation of sale deed executed in favour of the respondent No. 1 by one Shiv Nath Singh. The admitted case of the parties is that the plaintiffs Nos. 2 and 3 and Ram Singh were co-tenure holders. Smt. Bhagwani inherited the property on death of Ram Singh as married sister under Section 171 U. P. Zamindari Abolition and Land Reforms Act. Both the courts below have given a finding of fact that appellant No. 1 Smt. Batashi had no right or title in the disputed land. On the other hand plaintiffs Ram Gopal and Chaturi are admitted to be co-tenure-holders with Ram Singh having equal shares. After death of Ram Singh his sister Smt. Bhagwani inherited his l/3rd share under Section 171 U. P. Zamindari Abolition and Land Reforms Act. Shiv Nath Singh giving out to be son of Ram Singh executed a sale-deed in respect of l/3rd share in favour of respondent No. 1, main contesting defendant. Smt. Bhagwani was also made a party who in law inherited the share of Ram Singh. She did not contest the suit nor was she examined by any party. The courts below have dismissed the suit on the ground that plaintiff No. 1 was not the sister of Ram Singh. Their finding is a finding of fact and we need not go into the same.
2. Regarding the plaintiffs Nos. 2 and 3, the courts below have held that Smt. Bhagwani could have objected to the sale deed but these persons who were mere co-tenants with her had no right to object.
3. The learned counsel for the appellants argued that admittedly the plaintiff-appellants Nos. 2 and 3, were co-tenure holders and had a right to occupy each and every inch in the disputed property. It has been found by both the courts below that Shiv Nath Singh has no right or interest in the disputed land nor was he the Bhumidhar. Only a Bhumidhar could transfer his share or right. Consequently the defendant No, 1, bytransfer, in his favour could not get any right higher than that Shiv Nath Singh, his transferor, had. The learned counsel for the appellants argued that Section 41 of the T. P. Act had no application to the instant case.
4. The learned counsel for the appellants raised 4 questions before me. The first question was that the relief of possession was not sought in the plaint and therefore the suit was not maintainable. Presumably this objection can be under Section 34 of the Specific Relief Act and no other section. The trial court disclosed the said issue and held that no arguments were advanced by the defendant's counsel and therefore the suit was not barred by Section 34 of the Specific Relief Act. This finding has not been upset by the lower appellate court and I do not see any reason to set aside that finding. The 2nd Question raised by the learned counsel was about his rights as a bona fide purchaser for value and claimed a relief under Section 41 of the T. P. Act. The trial court held that the defendant was a bona fide purchaser for value and the learned counsel for the respondents argued that this question was not urged by the appellants before the lower appellate court. On page 4 of the judgment of the lower appellate court I find that the question has been referred to as one of the questions involved in the case but it so seems that the lower appellate court did not apply its mind to that argument. The sale deed is thus in respect of about 4 acres and is about total consideration of Rs. 200-/. There is nothing in evidence to suggest that any of the co-sharers instigated the defendant-respondent No. 1 to purchase the property. However, assuming Smt. Bhagwani by her silence so instigated the defendant No. 1 he could claim a relief against her. However, in the present case from paras, nos. 14 and 15 of the written statement it is clear that the defendant No. 1 fully knew the fact that Ram Singh was not the father of the executants Shiv Nath Singh and consequently there was no question of any misrepresentation by any one whatsoever nor was there any question of his believing such a representation.
5. The 3rd objection of the learned counsel for the respondents is that the co-sharers could not object to the defendant No. 1 taking possession or getting his name mutated in the share of another co-sharer. This argument is wholly devoid of force. The co-sharers are entitledto occupy each and every inch of the joint land and certainly any one of the co-sharers can take action against a person who claims any right in the joint property or proposes to occupy, it. Under the circumstances the suit by co-sharers that is the appellants Nos. 1 and 3 was maintainable and I reverse the finding of the court below on that question.
6. The 4th question that has been argued by the learned counsel for the respondents that the sale deed being void, the suit was not maintainable in civil court. The suit was filed in the year 1966. It has been found by the trial court that the suit was maintainable in the civil court. There is yet another aspect of the case. Shiv Nath Singh, the transferor, has alleged himself to be son of Ram Singh in the sale deed, Ram Singh was a co-sharer and admittedly had a share in the property. Consequently it was necessary to get the sale deed cancelled and claim a declaration that Shiv Nath Singh had no such right. Under the circumstances I find that the judgment of the lower appellate court cannot be upheld and has to be reversed, The suit by the co-sharers that is the appellants Nos. 2 and 3 for a declaration was maintainable.
7. The learned counsel for the appellants, however, argued that Shiv Nath Singh could transfer only such rights that he had. I have already found above that Shiv Nath Singh did not get any rights after death of Ram Singh. He was not a Bhumidhar of the land nor an heir of Ram Singh. Under the circumstances the sale deed could not confer any right on the transferee. They could not claim any right higher than that Shiv Nath Singh himself possessed.
8. In the result the appeal is allowed. The judgment and decree passed by both the courts below is set aside and the suit of the plaintiff is decreed with costs and the reliefs claimed by him in the plaint are granted. The sale deed executed by Shiv Nath Singh in respect of l/3rd share of the disputed land mentioned in the plaint is cancelled and the first relief claimed in the plaint is granted.