JUDGMENT Neave, J. - This is a defendant's appeal. A suit wag brought by the plaintiffs for a declaration that they were in possession of the plots in suit as co-sharers. The first Court dismissed the suit but the lower appellate Court has decreed it. 2. The plaintiffs and one Chheda are co-sharers in a certain khewat. Admittedly no formal partition has taken place bat it has been found by the court below that the co-sharers long ago divided up the land among themselves by a private arrangement for facility of cultivation. In this khewat the shares are described in terms of bighas and biswas instead of the more usual annas and pics. Chheda's share was 7 bighas, 7 biswas and 10 biswasis. In 1900 he usufructuarily mortgaged the 7 plots in suit of a total area of 3 bighas, 4 biswas to the father of the defendant Babu Ram, and under a kabuliat of the same date became tenant of the plots, which were his kudkhast. In 1914 Chedda executed a fresh usufructuary mortgage in favour of Babu Ram and also another kabuliat. Babu Ram then bad rent assessed on the 7 plots as the ex-proprietary holding of Chedda and later on sued him for arrears of rent and obtained a decree. On the 2nd of November 1917 Chedda sold the equity of redemption of these plots to Babu Ram, who now proceeded to execute his decree for arrears of rent against Chedda and got him ejected obtaining formal possession himself through an Amin on the 4th of June 1913. Very soon after this the plaintiffs themselves took possession of the plots. Babu Ram brought a suit in the Revenue Court for their ejectment creating them as tenants or trespassers. They pleaded that they were in possession as proprietors and were directed by the Revenue Court to have their rights determined by a Civil Court. They consequently brought the suit out of which this appeal arises. 3. It is argued on behalf of Babu Ram that he is entitled to whatever rights his vendor Chedda had in the plots in suit, and to be left in peaceful possession of them till a suit for partition is brought. They consequently brought the suit out of which this appeal arises. 3. It is argued on behalf of Babu Ram that he is entitled to whatever rights his vendor Chedda had in the plots in suit, and to be left in peaceful possession of them till a suit for partition is brought. A reference is made to Ram Peare Lal v. Nageshar (1918) 31 O.C. 214- 5 O.L.J. 613= 48 I.C. 91 where it was held that where a person has been in possession of a piece of joint land for a long time without any let or hindrance by the other co-sharers, the latter have no right to eject him or his transferee or to disturb his possession or enjoyment otherwise than by seeking partition. In the present case, however, the appellant Babu Ram was never in actual possession of the plots and both the mortgage and the sale of these plots in an undivided khewan were unquestionably illegal. The lower appellate court have found that the plaintiffs had no notice of either the mortgage or the sale until the defendant obtained formal possession. Chheda bad continued uninterruptedly in possession and the plaintiffs were not to know what transactions he might have been entering into with the defendant. The plaintiffs took possession of the plots very soon after the delivery of formal possession to Babu Ram, for they are shown in the khatauni for 1327 Fasli as having been in possession for two years. 4. In all the rulings relied on for the defendant it was either found that actual possession was proved or that a proportionate share in the mahal had been acquired. In the present case both these conditions are wanting. The defendant has never been in actual possession and be purchased only specific plots from a co-sharer in an undivided mahal. The plaintiffs are co-sharers in the mahal and though it would seem that in taking possession of these plots they have obtained possession of more than their proportionate share of land it was certainly as co-sharers that they took possession. Any excess can be recovered either in a suit for profits or for partition, but their claim for a declaration such as they pray for cannot be contested by the appellant whose only title is a sale deed recording an illegal transfer. The appeal fails and is dismissed with costs on the higher scale.