1. This was a suit by one of the widows and the daughter of Qudrat Husain for possession of a bagh. The plaintiffs alleged that Qudrat Husain had purchased half the bagh by private treaty and the other half at an execution sale, that he had died leaving the plaintiffs as his heirs, and that the defendant had interfered with their possession. The lower Appellate Court has found that Qudrat Husain acquired the bagh as stated, that he was in possession of the same within 12 years of the suit, and that he left another widow and a son, whose whereabouts ware unknown but whose death had not been proved, but that the plaintiffs as two of the heirs of Qudrat Husain were entitled to a decree for possession of the whole bagh.
2. The first point taken in second appeal is that secondary evidence of the purchase of half the bagh was not admissible. It appears to me, on the facts found, that the case falls under Section 65(a) or 65(c) of the Evidence Act and that any secondary evidence of the sale was admissible. The Subordinate Judge finds the sale proved and it is not suggested that there is no evidence to support the finding. Next, it is contended that the rights of the original owners of the bagh were not transferable. It appears to me that even if they were not transferable, Qudrat Husain, having held possession of the bagh, had an interest which devolved upon his heirs and that his heirs are entitled to recover possession against any one who cannot show a better title than they have. The third and last point taken is that the plaintiffs are not entitled to recover more than their share of the grove, because the existence of another widow and of a son has been proved. The plaintiffs rely on the decision reported as Munnu v. Nusrat Ullah Khan A.W.N. (1901) 36 which follows a previous ruling of this Court reported as Hira Lal v. Bhairon 5 A. 602. It seems to me that the decisions, cited do not cover the present case. They amount to no more than this that one of several parsons jointly interested in land may sue to eject a trespasser where the removal of the trespasser is necessary to give the plaintiff enjoyment of his rights. In the present case, the plaintiffs have definite shares in the grove of which they can be given possession and, in my opinion, they are not entitled to possession of any larger share. The plaintiffs are, as between them entitled to a 17/43the share in the grove. I modify the decree of the lower Appellate Court by giving the plaintiffs a decree for possession of a 17/48ths share in the grove. The parties will pay and receive proportionate costs throughout.