JUDGMENT : R.N. Misra, J. - Defendant no. 2 is in appeal against the affirming decree of the learned Subordinate Judge of Balasore in a suit for partition. 2. Plaintiffs came to Court asking for partition of the one-fourth share purchased by them on 30th of March, 1953 under Ext. 3. Krushnakanta in his turn had purchased the property from Pohala Dei, a member of the family, on 18-1.1939 under Ext. 2. Defendant no. 2, a member of the original alienor's family entered contest and maintained that Pohala had no right of alienating specific property as there had been no partition and in view of the admitted case of the plaintiffs that Pohala had a moiety share in the property, the alienation could be valid only to the half share. He also maintained that the disputed property was ancestral homestead and as such he was entitled to buy out the plaintiffs, stranger-purchasers, under section 4 of the Partition Act. The question of half share is with reference to plot no. 1041 having a total area of 5 decimals. It may be pointed out that the rest of the property sold was agricultural land. Defendant no. 2 maintained that the plaintiffs had clearly admitted in the plaint that the second defendant had half share therein. In that view of the matter, the plaintiffs had become co-sharers on the basis of purchase from defendant's co-owner. There was no plea of ouster and therefore, even if the purchasers and before them their vendors were in exclusive possession, no title could accrue as a result of such possession. Plaintiffs, therefore, were entitled to only half of the homestead and at the time of partition, the second defendant was entitled to the other half out of plot no. 1041. 3. Mr. Mohanty for the plaintiffs-respondents on the other hand contended that the transferees being strangers did not become co-sharers and being in possession were entitled to prescribe against the true owner of the moiety share. The suit was filed in 1970. The transfer under Ext. 3 is of 1953. Therefore, plaintiffs had perfected their title to the entire plot on the basis of purchase. The suit was filed in 1970. The transfer under Ext. 3 is of 1953. Therefore, plaintiffs had perfected their title to the entire plot on the basis of purchase. He placed reliance on the decisions reported in Anwar and others v. Kishan Singh AIR 1922 Lahore 205, Baijnath and another v. Ram Bilas and others AIR 1924 Allahabad 738, Lala Kirpa Ram and another v. L. Dwarka Prasad and another AIR 1939 Allahabad 518, Ram Udit Upadkiha v. Bhagwan Prashad and others AIR 1926 Oudh. 500and Munuswami Chetty v. Sarabayya and others AIR 1957 Andhra Pradesh 16. Though there has been some difference in judicial thought as to the consequence of a stranger-purchaser entering into possession of joint family property, the weight of precedents is against the submission of Mr. Mohanty. In the case of Chander Bhan v. Jai Lal Harphul and others AIR 1964 Punj. 435, several decisions of the Lahore High Court have been referred to and relied upon taking a view contrary to the submission of Mr. Mohanty. The question came for determination before Justice Sulaiman in the case of Subeh Lal v. Fateh Mohamad AIR 1932 Allahabad 393, on a difference between two learned Judges. Sulaiman, J, referred to series of authorities including some of the Judicial Committee and came to the conclusion :- "It would follow that there can be no difference in principle whether a person is the original co-owner, or has become a co-owner by virtue of a transfer. From the moment of his acquiring a share in the common property he becomes a co-owner and has the same legal title as his predecessor to enjoy the whole. His possession of the whole is equally referable to his legal title and his possession need not necessarily be adverse. The other co-owners, if they have actually no knowledge of the extent of the share transferred, are entitled to presume that their co-owner has transferred his own interest only and that the transferee by virtue of his right to that share is enjoying possession of the whole property. The mere fact that a transferee is in possession would not put them on inquiry, for the transferee has just as much right to enjoy the whole property as his transferor had. The mere fact that a transferee is in possession would not put them on inquiry, for the transferee has just as much right to enjoy the whole property as his transferor had. The principle of law based on the mere fact of co-ownership would apply with equal force to a transferee from a co-owner, who steps into the shoes of his vendor. A co-owner has no duty cast upon him to watch the conduct of another co-owner and be on the look-out to find out the extent of the share purported to be transferred by him, and to intervene if more than the real share has been transferred. He is entitled to assume that the permissive nature of the possession has passed on to his co-owner's transferee who has now become the co-owner in place of the original co-owner. Of course, if the assertion of title to the whole is brought to his knowledge, and it is accompanied by his ouster and exclusion, adverse possession would then commence as against him. The burden therefore would be on the transferee to establish that the denial of title and ouster were brought to the knowledge of the other co-owner and in the absence of such proof he would not be able to perfect his adverse possession." The two Allahabad cases relied on by Mr. Mohanty have not kept the majority opinion in this Allahabad decision in view while observing in a different manner. A Division Bench of the Calcutta High Court presided by Chief Justice Rankin in the case of Biswanath Chakravarti v. Rabija Khatun and others AIR 1929 Calcutta 250, has also spoken in the same strain. Though not cited at the Bar, I have come across a Single Judge decision, of this Court in the case of Smt Puddipeddi Laxminarasamma v. Gadi Ranganayakamma and others AIR 1962 Orissa 147, where Barman, J., as the learned Judge then was, observed :- "This Court noted the two schools of thought, namely, a class of authorities including a decision in Abdul Ghafur v. Ashamat Bibi 54 Ind. Cas. 385 (A.I.R. 1920 Mad. Cas. 385 (A.I.R. 1920 Mad. 160), in which it was held that the entry of an alienee from a co-transferee into the property alienated was adverse to the co-transferees from the very moment of that entry; on the other hand, there is another class of authorities including the decision in the said Allahabad cases which have taken a different view to the above fact. This Court, however, decided that it would serve no purpose to review as to which of the two different schools of thought lays down the correct legal position and left the question open, Radharani Das v. Chandeswar Kesh, 1960-2, Orissa J.D. 181 at pp. 193-5. In my opinion, the view that the possession of a purchaser of an undivided share of a joint family property is adverse from the date of sale, is supported by the Privy Council decision, AIR 1950 P.C. 44 at pp. 47, 48, cited above where Lord Radcliffe laid down the basic principles underlying the question of adverse possession under Article 144 of the Indian Limitation Act as stated above." The question now posed did not directly arise for determination in the case reported in Smt. Puddipeddi Laxminarasamma v. Gadi Ranganayakamma and others AIR 1962 Orissa 147. Lord Radcliffe in the decision of the Judicial Committee reported Sudarsan Das v. Ram Kirpal Das AIR 1950 P.C. 44 , had not stated anything contrary to the view indicated by Sulaiman, J., in Subeh Lal v. Fateh Mohamad AIR 1932 Allahabad 393. In paragraph 16 of the Judgment of Lord Radcliffe, it was observed : "Now it is the respondents' case it is in fact their main contention on this issue-that the appellant has never at any time had adverse possession against them because, the disputed property being a four-anna undivided share, his possession has been throughout no more than a joint possession with them. And the joint possession which coparcener's enjoy in respect of the undivided property involves that, prima facie, the exclusive possession of any one of them is not adverse to the others. Their Lordships have no doubt of the validity of this general rule; but they are unable to think that it will be in any way departed from if they hold that in respect of the disputed property itself the appellant's possession has been adverse to the owners of the other shares. Their Lordships have no doubt of the validity of this general rule; but they are unable to think that it will be in any way departed from if they hold that in respect of the disputed property itself the appellant's possession has been adverse to the owners of the other shares. In truth there is some confusion involved in the argument. What is in question here is not adverse possession of the block of property in which the various undivided interests subsist but adverse possession of one undivided interest. Article 144 certainly extends the conception of adverse possession to include interest in immovable property as well as the property itself nor was it disputed in argument by the respondents that there could be adverse possession of an undivided share, given the appropriate circumstances. What they maintained was that such circumstances were lacking in this case. Their Lordships cannot accept this for the history of the long wrangle over the disputed property suggests a very different conclusion." In paragraph 17 of the Judgment, the Law Lord proceeded to indicate :- "It seems clear that at the time of Suit No. 226 of 1919 the appellant was out of possession. His complaint was that Priya Das had been dispossessed after his purchase and the relief that be (the appellant) asked for in the suit was vindication of his title and recovery of possession of the disputed property. This relief the Court gave him by its decree of 16th June, 1920, which was affirmed on appeal. It is true that the decree says that he is to get possession over the share claimed by him with Damodar Das and another party to the suit claiming under Damodar. But there seems to be no doubt, when the judgment itself is read, that what that meant was that the appellant was to have possession of his share, the disputed property, without the necessity of claiming an actual partition of the undivided property. It could mean nothing else in the light of the declaration of his sole title to the disputed share which the Court granted to him at the same time. Everything that followed is consistent with this." The special circumstances indicated in paragraph 17 justified the conclusion of the Judicial Committee in paragraph 16 about the legal position applicable to the facts of the case before the Privy Council. Everything that followed is consistent with this." The special circumstances indicated in paragraph 17 justified the conclusion of the Judicial Committee in paragraph 16 about the legal position applicable to the facts of the case before the Privy Council. Nothing had been said by Lord Radcliffe to support the view that the stranger-transferee upon entering into possession of joint property started prescribing against co-owners. The well accepted juristic principle behind the special incidence of joint ownership had not been negatived by the Judicial Committee. Reference may also be made to a Single Judge decision of the Saurashtra High Court delivered by Shah, C.J., as the learned Judge then was, in the case of Salemamad Haji Abdul Shakur, deceased's heirs Mahomed Sidic Salemohmad and others v. Haji Hasam deceased by his sons and heirs Haji Ahmed Hasan and others AIR 1954 Sau. 113. After discussing several authorities, the learned Judge concluded by saying :- "Following the rulings in AIR 1929 Calcutta 250 ; AIR 1916 Mad 430 and AIR 1932 Oudh 122, I hold that the suit is governed by Article 144, Limitation Act and the plaintiff will be entitled to have his share separated by partition, unless his title was defeated by adverse possession of the defendants for twelve years prior to the suit. Mr. Mehta has frankly conceded that having regard to the nature of the property, it is not possible to contend that the defendants had established their adverse possession. The property is a vacant piece of land and was walled very recently. It was not put to any specific use and above all there was no disclaimer or denial of the plaintiff's title at any time prior to the suit which is an essential factor to constitute adverse possession against a co-owner........" There is, therefore, no force in the submission of Mr. Mohanty that the plaintiffs had acquired title by adverse possession to the whole of plot no. 1041, notwithstanding the admitted position in the plaint itself that plaintiffs were co-owners with defendant no. 2 in regard to the property with defendant no. 2 having a moiety share. Defendant no. 2, therefore, is entitled to succeed in his contention that under Ext. 3, plaintiffs must be deemed to have acquired a moiety share of Pohala and not the whole plot. 4. 2 in regard to the property with defendant no. 2 having a moiety share. Defendant no. 2, therefore, is entitled to succeed in his contention that under Ext. 3, plaintiffs must be deemed to have acquired a moiety share of Pohala and not the whole plot. 4. Coming to the other contention, namely, application of section 4 of the Partition Act, I do not think, Mr. Kar should succeed. The plaintiffs entered into the property as early as 1953 and had been in possession ever since then. Defendant no. 2 tolerated the plaintiffs as co-owners in possession for seventeen years prior to the suit. Such long possession and enjoyment by stranger-transferees who had become co-owners dis-entitles any original member of the family to exercise the right under section 4 of the Partition Act. Though Mr. Kar was very vehement on the first occasion, at an adjourned date of hearing, he himself fairly stated that judicial view was against him and, therefore, did not press the point. 5. The second appeal is allowed in part. Parties are directed to bear their own costs throughout. Final Result : Allowed