JUDGMENT : Amarendra Naih Varma, J. 1. These two appeals are being disposed of by a common judgment as they arise out of the same suit, being suit no. 956 of 1968 filed by Subodh Chandra Das, the plaintiff appellant in Second Appeal No. 55 of 1981 against the defendant-appellants in Second Appeal No. 3274 of 1980. The plaintiff as well as the defendants both having felt aggrieved by the decision of the lower appellate court have filed the two appeals. The suit was filed againat Satish Chandra Das, Beni Madho Das and Rajendra Prasad respectively arrayed as defendant nos. 1, 2 and 3 in the suit for possession after eviction of Rajendra Prasad as well as for damages for use and occupation against him. Both the defendants nos. 1 and 2 died during the pendency of the suit and are now represented by their heirs and legal representatives arrayed as respondents in these two appeals. 2. The dispute relates to a house no. 7, Minto Park Road, Kydganj, Allahabad. Nut Behari Das, the father of Subodh Chandra Das, Satish Chandra Das and Beni Madho Das aforesaid had acquired a piece of land on permanent lease on which the disputed house was constructed. Nut Behari Das resided in the house along with his family till his death in 1942 leaving his aforesaid three sons as his heir and legal representatives in actual possession of that dwelling house. The house had been mortgaged by Nut Behari Das and it was later auctioned in execution of a mortgage decree. The plaintiff got the auction sale cancelled after depositing the mortgage money and then sued his other brothers Satish Chandra Das and Beni Madho Das for contribution. Meanwhile Satish Chandra Das and Beni Madho Das executed an agreement of sale in favour of Rajendra Prasad and in part performance of that agreement allowed Rajendra Prasad to enter into and occupy four rooms, three verandahs, store, kitchen, bath and toilet along with some open space This was done according to the plaint allegation without the knowledge of the plaintiff who was posted outside. It was further alleged in the plaint that the disputed house was an undivided dwelling house of the plaintiff and his aforesaid two brothers and Rajendra Prasad being a complete stranger to the family had no right to acquire the house or to disturb the possession and privacy of the plaintiff over the same. The defendants nos. 1 and 2 also had no right to deliver possession to Rajendra Prasad. The plaintiff was thus deprived of the full and free enjoyment of the disputed dwelling house Consequently the suit for the reliefs mentioned above. All the three defendants filed a joint written statement. Their defence was that the defendants nos. 1 and 2 had entered into an agreement to sell their two third share in the house and the land to Rajendra Prasad for a sum of Rs. 15,000/- out of which they had taken Rs, 8,000/- as earnest money. In part performance of the contract possession was duly delivered by the defendants nos. 1 and 2 of the portion of their house in their occupation to Rajendra Prasad who was since in possession as a co-owner of the disputed house without disturbing in the least possession of the plaintiff over the portion in his occupation. Besidest Rajendra Prasad had also purchased one- third share of Beni Madho Das at the court auction held in execution of the decree passed in suit no. 877 of 1966 and in pursuance thereof possession had been duly delivered to him on 24-7-70 vide paper no. 173 C, the dakhalnama (delivery memo). A sale certificate had been issued in favour of Rajendra Parsad. Thus Rajendra Prasad was in occupation of the disputed house both in part performance of the agreement for sale as well as purchaser of the one-third share of Beni Madho Das at a court auction in execution of the decree passed in the aforesaid suit. Rajendra Prasad was, therefore, not a trespasser but in lawful occupation as a co-owner of the disputed house and hence could not be evicted therefrom. 3. On these pleadings relevant Issues were framed by the trial court. It held that Rajendra Prasad was not a trespasser and that the remedy of the plaintiff lay in a partition suit and not a suit for the ejectment of the defendant no, 3. ON these and other findings the suit was dismissed. 3. On these pleadings relevant Issues were framed by the trial court. It held that Rajendra Prasad was not a trespasser and that the remedy of the plaintiff lay in a partition suit and not a suit for the ejectment of the defendant no, 3. ON these and other findings the suit was dismissed. Aggrieved by that decree, the plaintiff filed an appeal which has partly succeeded. 4. On appeal by the plaintiff, the lower appellate court affirmed the findings of the trial court on the issue that Rajendra Prasad was a co-owner possessing two-third share in the disputed house and being in occupation as a co-sharer he could not be evicted. In regard to Section 44 of the Transfer of Property Act, the lower appellate court expressed the view that if Rajendra Prasad had not already been in occupation of the house as a co-owner he would not have been entitled to bring a suit for joint possession. However, as he was already in possession he could not be dubbed as a rank trespasser liable to be evicted. The lower appellate court, however, negatived the plea of Rajendra Prasad that there was already a partition between Subodh Chandra Das and his other two brothers and that, therefore, it could not be said that the house belonged to an undivided family within the meaning of Section 44 of the Transfer of Property Act. The next finding that needs to be noticed is that Rajendra Prasad has, after he entered into possession, constructed a wall whereby he has deprived the plaintiff of the used of common amenities, such as, toilet and the bath room, etc The plaintiff has in deed been ousted from user of those amenities and hence become entitled to a decree for joint possession over the disputed property. The lower appellate court, however, declined to pass a decree for eviction against Rajendra Prasad. The result was that the appeal filed by the plaintiff was partly allowed. A decree for joint possession was passed in favour of the plaintiff and against all the defendants after removal of the wall stated to have been constructed by Rajendra Prasad. As mentioned above, both the parties have felt aggrieved by the aforesaid decree and, therefore, the two appeals. A decree for joint possession was passed in favour of the plaintiff and against all the defendants after removal of the wall stated to have been constructed by Rajendra Prasad. As mentioned above, both the parties have felt aggrieved by the aforesaid decree and, therefore, the two appeals. Sri Rajeshwari Prasad, learned counsel for Rajendra Prasad, submitted that the lower appellate court should have dismissed the suit in to while Sri Markandey Katju, the learned counsel for Subodh Chandra Das, vehemently contended that in view of the second part of Section 44 of the Transfer of Property Act and in view of the various authorities cited by him, the suit should have been decreed in its entirety. 5. When the appeals were first heard, counsel for the parties addressed the Court entirely on the interpretation and effect of Section 44 of the said Act on the rights of the parties. Sri Katju submitted that the interdict embodied in the latter part of Section 44 is explicit and preemptory. It mandates that a stranger shall not be entitled to joint possession or common or part enjoyment of a dwelling house belonging to an undivided family and that this position remains unaltered even if the stranger purchaser of a share in such a house enters into possession of the house under a transfer made in his favour. Sri Katju placed strong reliance on the decisions in the case of Bhim Singh v. Ratnakar Singh (AIR 1971 Orissa 198 paragraph 23) ; Udayanath Sahu v. Ratnakar Bej (AIR 1967 Orissa 139) Sheonath Seth v. Smt Krishna Kumari Devi (AIR 1973 Alld. 496) and Sri Surendra Nath Acbar v. Sri Ram Chandra Hazra (75 CWN 195). 6. If Section 44 of the Transfer of Property Act applied to the case I have no manner of doubt that Rajendra Prasad would be liable to be evicted. Sri Katju was perfectly right in stressing that the prohibition contained in the latter part of Section 44 of the Transfer of Property Act is absolute and unambiguous. A stranger purchaser of a share in a dwelling houst belonging to an undivided family cannot in view of .Section 44 of the Transfer of Property Act be permitted to remain in joint possession of such a house or to enjoy in common the amenities attaching thereto. The authorities cited by Sri Katju fully support his contention. A stranger purchaser of a share in a dwelling houst belonging to an undivided family cannot in view of .Section 44 of the Transfer of Property Act be permitted to remain in joint possession of such a house or to enjoy in common the amenities attaching thereto. The authorities cited by Sri Katju fully support his contention. However, at the subsequent hearing of the appeal, learned counsel for Rajendra Prasad invited the attention of the Court to various provisions of- the Transfer of Property Act which leave little doubt that Section 44 of the Transfer of Property Act does not apply to the present case. It is also indisputable that if Section 44 of the Transfer of Property Act does not apply it cannot be seriously doubted that as one who is in possession of the disputed house owning two-third share therein, Rajendra Prasad cannot be held to be a trespasser. His possession would in that case be perfectly lawful and that the only remedy which the plaintiff shall be left with would be a suit for partition and not a suit for eviction. (See Dropdi Devi v. Jagdish Chandra AIR 1989 Raj. 110 ). I, therefore, turn to the provisions cited by Sri Rajeshwari Prasad. He first referred to Section 2 of the Transfer of Property Act which provides : "2 Repeal of Acts, saving of certain enactments, incidents, rights, liabilities, etc. In the territories to which this Act extends for the time being the enactments specified in the schedule hereto annexed shall be repealed to the extent herein mentioned. He first referred to Section 2 of the Transfer of Property Act which provides : "2 Repeal of Acts, saving of certain enactments, incidents, rights, liabilities, etc. In the territories to which this Act extends for the time being the enactments specified in the schedule hereto annexed shall be repealed to the extent herein mentioned. But nothing herein contained shall be deemed to affect- (a) the provisions of any enactment not hereby expressly repealed ; (b) any terms of incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force ; (c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability ; or (d) save as provided by Section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a court of competent jurisdiction ; and nothing in the second chapter of this Act shall be deemed to affect any rule of Mohammedan Law." 7. The next provision relied on by him was Section 5 of the said Act Which lays down : "5. 'Transfer of Property' defined-In the following sections 'transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and to 'transfer property' is to perform such act. In this section 'living person' includes a company or association or body of individuals, whether incorporated or, not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. 8. Relying on clause (d) of Section 2 quoted above Sri Rajeshwari Prasad submitted that inasmuch as Rajendra Prasad had also purchased at a court auction one-third share of Beni Madho Das in execution of suit no. 877 of 1966 it would be a case of transfer by operation of law and/or in execution of a decree of a court. That being so, such a transfer would not be covered by Section 44 of the Transfer of Property Act. The learned counsel is clearly right there. Paper no. 877 of 1966 it would be a case of transfer by operation of law and/or in execution of a decree of a court. That being so, such a transfer would not be covered by Section 44 of the Transfer of Property Act. The learned counsel is clearly right there. Paper no. 172-C is the original sale certificate issued to Rajendra Prasad in pursuance of the sale of one-third share at a court auction in execution of the decree in the aforesaid suit while paper no 173-C is the Dakhalnama (delivery memo) prepared by the court amin stating that in pursuance of the decree in the said suit and execution case no 27 of 1969 possession has been delivered to Rajendra Prasad over the house by beat of drums etc. These papers clearly demonstrate that Rajendra Prasad was in. possession over the disputed property also in pursuance of a court auction held for the sale of one-third share of Beni Madho Das in execution of the decree passed in suit no. 877 of 1966, that Is, he was in possession under a transfer effected in execution of a decree. Such a transfer is without doubt covered by clause (d) of Section 2 of the Act. 9. Rajendra Prasad was thus in occupation both in part performance of agreement to sell executed by two of the three brothers as well as under a transfer effected in execution of a decree. I see no reason why he cannot fall back on the transfer effected in execution of the decree to protect his possession over the house. If his possession can be traced to a title derived as a result of transfer through court, the operation of Section 44 shall stand excluded as Section 44 shall have application with respect to those transfers only which are not excluded under Sections 2 or 5 or any other enactment. 10. The same conclusion flows from a look at Section 5 of the Transfer of Property Act which states that 'transfer of property' means an act by which a living person conveys property to one or more other living persons. Transfer of property by a court in execution of decree is not a transfer by a living person. I am fortified here by a decision of the Supreme Court in Laxmi Devi v. Mukand Kansvar reported in AIR 1965 SC 834 . Transfer of property by a court in execution of decree is not a transfer by a living person. I am fortified here by a decision of the Supreme Court in Laxmi Devi v. Mukand Kansvar reported in AIR 1965 SC 834 . their Lordships have interpreted the ambit and effect of Section 5 of the Transfer of Property Act vis-a-vis Section 2 (d) of the same Act in paragraph 15 of the decision and have ruled that the term 'transfer of property as used in various sections of the Transfer of Property Act is intended to take in transfers effected by act of parties inter vivos and that an auction sale in pursuance of decree is not such an act. To the same effect is the decision of our own Court in Mangat Lal v. Ghasi Khan reported in AIR 1929 Alld.' 800. The question there was whether Section 44 of the Transfer of Property Act is attracted to an auction sale held in execution of a decree. This Court answered the issue in the negative and held that the provisions of the Transfer of Property Act are attracted only to transfers effected by an act of a living person whereby he conveys property to one or more of living persons. No such transfer takes place where the property is passed on under a court auction held in execution Of a decree. 11. Thus in either view the conveyance of the property in favour of Rajendra Prasad in execution of a decree will not be governed by the provisions of Section 44 of the Transfer of Property Act Section 44 of the Transfer of Property Act is the only provision which, if attracted, would have entitled the plaintiff-respondent to have the defendant-appellant evicted from the disputed property in view of the latter part of that provision, Rajendra Prasad not being a member, of the family of the plaintiff-respondent. 12. Now it is not difficult to see that if Section 44 is excluded, a decree for eviction cannot be legally passed against Rajendra Prasad as he is not a trespasser. His possession is referable to lawful origins, namely, as purchaser of one third share at a court auction as well as under the agreement to sell. Such a possession undoubtedly cannot be disturbed until the property is partitioned. (See AIR 1989 Raj. 110 (supra). His possession is referable to lawful origins, namely, as purchaser of one third share at a court auction as well as under the agreement to sell. Such a possession undoubtedly cannot be disturbed until the property is partitioned. (See AIR 1989 Raj. 110 (supra). There is ample authority and precedent to support this proposition. Indeed courts have gone to the extent that even if a person having a lawful title occupies the property forcibly his status would not be that of a trespasser. And even if he is evicted he can bring an action for being put in possession (See Bandu v. Naba ILR 15 Bom. 238 ; Laltu Singh v. Mangau Singh AIR 1941 Oudh 615 ; Dhanraj Singh v. Lakhrani Kuar AIR 1916 Alld. 163 and AIR 1989 Raj. 110 (supra). The present case stands on a higher footing. Rajendra Prasad's entry was lawful. He was a purchaser at a court auction and in pursuance thereof put in possession though formally as he was already in possession under the agreement. He cannot hence be evicted from any part of the property until a partition takes place. 13. The upshot is that Rajendra Prasad is not a trespasser and he cannot be evicted from the disputed property. If, however, he is occupying a portion of the dwelling house which is in excess of his share the mischief can be remedied by way of a partition suit as was ruled by the Rajasthan High Court in the case of Dropdi Devi (supra). It is for this reason that the lower appellate court refrained from recording any finding on whether Rajendra Prasad was in occupation in excess of his share. 14. The lower appellate court has, however, in spite of the finding that the defendant-appellant, was not a trespasser, decreed the suit for joint possession on the finding that he has after entering into possession over the property constructed a wall and thereby ousted the plaintiff and the members of his family from the user of common toilet, bath-room and water tap. After being deprived of these amenities, the plaintiff filed a suit claiming damages against Rajendra Prasad in addition to the relief of possession claimed in the present suit. The suit for damages stands decreed and a second appeal being Second Appeal No. 752 of 1976 is already pending in this Court. After being deprived of these amenities, the plaintiff filed a suit claiming damages against Rajendra Prasad in addition to the relief of possession claimed in the present suit. The suit for damages stands decreed and a second appeal being Second Appeal No. 752 of 1976 is already pending in this Court. In my opinion, the lower appellate court has committed no error in granting the decree for joint possession in view of the facts stated above. The finding is that the plaintiff respondent and his family have been deprived of the use of such basic amenities as toilet, bath room and the tap. I do venture to think that a co-sharer has no right to deprive another co-sharer of the use of such amenities. In my view, the plaintiff cannot be told off and non-suited on the ground that he must wait till the conclusion of the suit for partition before those amenities can be restored. The law and equity both seem to justify the decree for a joint possession granted by the court below. 15. In conclusion this Court holds that a decree for ejectment cannot be passed against Rajendra Prasad. The decree for joint possession passed by the lower appellate court is, however, approved and affirmed 16. In the premise, both the appeals fail and are dismissed. The judgment and decree passed by the lower appellate court stand restored. The parties shall, however, bear their own costs in both the appeals. Appeals dismissed.