1. A certain house in the Town of Kaimganj belonged to Sita Ram Seraogi. On his death it descended to his sons Kirpa Ram and Chhote Lal. Kirpa Ram was succeeded by his sons Girdhari and Radha Kishan. Chhote Lal was succeeded by his song Shitab Rai, Biddeh Chand and Thakur Das. The interests of Girdhari and Radha Kishan, which amounted to a half interest in the house, were sold to Sewa Ram and the interests of Shitab Rai and Biddeh Chand, which amounted to a 2/3 interest in 1/2 of the house, that is to say, to 1/3 in the whole house, descended to Biddeh Chand's son Chhidammi Lal, who sold them to Khushali, who sold them to Sewa Ram. Sewa Ram thus acquired 1/2 plus 1/3--5/6ths in the whole house. The remaining l/6th interest of Thakur Das was sold to Sadloo, who sold it to Shib Dayal. Shib Dayal's widow mortgaged it to Nannhu Mal. Lachhmi Narain, the son of Sewa Ram, instituted a suit in 1919 for possession of d/6ths of the house against Nannhu Mal who, he alleged, had taken possession over his 5/6ths in addition to his own l/6th. The lower Courts have found that Lachhmi Narain was not in possession within twelve years of the institution of the suit and have dismissed his suit. He appeals, His case is that he and the defendants are co-owners, that thus the defendants' possession is his possession and that in the absence of an ouster or something equivalent to ouster he must succeed. He points out that there has been no ouster. He relies on the decision in Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 at p. 205 : 13 A.L.J. 204. This decision applies the rule laid down in Corea v. Appuhamy (1912) App. Cas. 230 : 81 L.J.P.C. 151 : 105 L.T. 836. This decision is a decision of a Bench and if the doctrine laid down therein has not been dissented from by a Fall Bench or by their Lordships of the Privy Council, it binds me as a Single Judge if it has application. It was suggested by the learned Counsel for the respondents that the recent decision of their Lordships of the Privy Council in Varada Pillai v. Jeevarathnammal 53 Ind. Cas. 901 : 43 M. 244 : (1919) M.W.N. 724 : 10 L.W. 679 : 24 C.W.N. 346 : 88 M.L.J. 313 : 18 A.L.J. 274 : 2 U.P.L.R. (P.C.) 64 : 22 Bom. L.R. 444 : 44 I.A. 285 (P.C.) decided that the doctrine in Gorea v. Appuhamy (1912) App. Cas. 230 : 81 L.J.P.C. 151 : 105 L.T. 836 had no application to the case of sharers in an un-partitioned agricultural village. The property in question is house property, but if their Lordships had laid down that the rule in question was not applicable to sharers in an unpartitioned agricultural village in India not holding their shares as members of a joint family, it would be a legitimate inference that the rule was also not applicable to sharers of an unpartitioned house in India not holding their shares as members of a joint family. But this decision lays down nothing upon that point. It is , said at page 252 Page of 43 M.--[Ed.]: 'Whether this rule is applicable to sharers in an unpartitioned agricultural village in India not holding their shares as members of a joint family, it is unnecessary for the purposes of the present case to decide,' and there has been no decision upon the point either of a Full Bench or of their Lordships of the Privy Council. The decision, therefore, in Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 at p. 205 : 13 A.L.J. 204 binds me as a Single Judge.
2. The next point I have to consider is whether the decision has application. Clearly if the parties are sharers in an unpartitioned house not holding their shares as members of a joint family, on the decision in Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 at p. 205 : 13 A.L.J. 204, the appeal must succeed. The learned Counsel for the respondents has urged that on the facts the house has been partitioned and that Sewa Ram obtained possession over a separate and divided 5/6th share and Sadloo obtained possession over a separata and divided l/6th share. If this were the ease, the Allahabad decision (1) would have no application for the parties would not be co owners and the decision of the lower Court could not be attacked on the ground that the possession of one co-owner was the possession of all, but on the facts it appears that the property is undivided and unpartitioned. The sale-deeds show transfers only of a share in undivided property, and such evidence as has been believed by the lower Courts as showing occupation does not establish anything of the nature of a division. It appears from such leases as have been proved that Sewa Ham admitted as tenants Chhidammi, who was the son of Biddeh Chand and Shitab Rai, and Sadloo admitted as tenant Chander Sen, the son of Thakur Das. In other words, the descendants of Sita Ram, the former owner of the house, were permitted to remain on as tenants. From this it would not appear that it would have been necessary to effect anything of the nature of a partition, as presumably they would have continued to occupy the quarters which they always had occupied. I can find nothing to show a partition or any division. How then does the case stand? This was a joint house, just as in the case of Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 at p. 205 : 13 A.L.J. 204, the enclosure was a joint enclosure, and the law laid down as to the joint enclosure will be the same with regard to the joint house. I find that the parties are co-owners, as they are called in India, or tenants-in common, as they would be called in England, and that the decision in Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 37 A. 203 at p. 205 : 13 A.L.J. 204 has application. I, therefore, allow the appeal and direst that the plaintiff's suit be decreed for joint possession over a 5/6th share in the house in question. I can find no evidence on which I can rely as to damages and do not propose to send the case bank for a finding on this point. As the learned Counsel for the appellant does not press the claim for damages, the suit will, therefore, be decreed for joint possession over a 5/6th share of the house only. The contesting defendant Nannhu Mal will pay his own costs and those of the plaintiff in all Courts, including in this Court fees on the higher scale.