Judgment 1. This Letters Patent Appeal is directed against the judgment and order of a learned Judge of this Court dated 29th January, 1991 in Appeal from Original Decree No. 532 of 1978 whereby the learned Judge dismissed the appeal preferred by the appellants herein. Respondent No. 1 is the plaintiff who filed a suit for specific performance of an agreement, Ext-3 dated 8.11.1968 executed by defendant No. 1 in the presence of defendant No. 2. The legal representatives of defendant No. 2 are the appellants in this appeal while respondents 2 to 5 are the legal representatives of defendant No. 1. 2. The case of the plaintiff was that defendant No. 1 was in need of money and therefore, In the presence of defendant No. 2, he agreed to sell the property described in Schedule I of the plaint comprising 16 hours of land containing a shop facing west and a Khandi adjacent to the shop situated within the town of Siwan for a sum of Rs. 15,000.00 out of which a sum of Rs. 6000.00 was paid in advance and agreement to sell Ext-3 was executed on 8.11.1968. The balance was agreed to be paid by the 2nd of January. 1971 when the defendant No. 1 was to execute the sale-deed on receipt of total consideration money. Pursuant to the agreement, Ext-3, the plaintiff was put in possession of the shop along with the Khandi. After arranging for the balance amount to be paid to defendant No. 1, the plaintiff expressed his readiness and willingness to pay the balance consideration money but defendant No. 1 on one pretext or the other evaded and ultimately refused to execute the sale-deed According to the plaintiff, defendant No. 1 was in exclusive possession of the suit property after partition between him and other co-sharers including defendant No. 1 and he was, therefore, entitled to transfer the said land. However, with a view to avoid the agreement, the defendants in collusion with others filed a suit purporting to be a partition suit in the Court of Sub-Judge, Siwan and in that suit a fraudulent compromise decree was obtained under which defendant No. 1 his vendor, was allotted a share in other properties described in Schedule II of the plaint while defendant No. 2 was allotted the suit property, which was earlier sold to the plaintiff by defendant No. 1 According to the plaintiff, the suit was filed fraudulently and even the compromise decree was obtained fraudulently with a view to defeat the agreement executed by defendant No. 1 in favour of the plaintiff. 3. Defendant No. 1, the vendor of the plaintiff, did not contest the suit but his brother defendant No. 2 contested the suit. His case was that there was no previous partition between him and his brother with regard to suit property and other properties which were jointly held by them and their other co-sharers. The. execution of the agreement was also disputed and similarly payment of any consideration amount was disputed. The deed of agreement was described as a forged and fabricated document. It was urged that a compromise petition was filed in the partition suit and that the compromise was neither collusive nor fraudulent nor was it intended to defeat the claim of the plaintiff to the house and Khandi in question. Since in the partition, the house in question was allotted to defendant No. 2 his right could not therefore, be defeated by the plaintiff. The trial Court as well as the learned Judge have concurrently found that the Suit as framed was maintainable and that the plaintiff had cause of action for the suit which was not barred by limitation. The agreement to sell Ext-3 was a genuine and valid document and was supported by consideration, Both the Courts have concurrently held that the case set up by defendant No. 2 that there was no earlier partition, could not be believed. The compromise suit and the compromise decree therein were fraudulent and collusive. On these findings, it was held that the plaintiff was entitled to the specific performance of the agreement, Ext-3. 4. The compromise suit and the compromise decree therein were fraudulent and collusive. On these findings, it was held that the plaintiff was entitled to the specific performance of the agreement, Ext-3. 4. Learned Counsel appearing on behalf of the appellants who are legal representatives of defendant No. 2 submitted that he was not in a position to challenge the concurrent findings of fact but he raised a question of law, namely, that in the absence of a partition, the co-sharers Jointly held all the properties of the last owner as tenants in common. Each co-sharer was owner of each and every property comprised in the estate of the deceased and in the absence of a partition no co-sharer could claim any particular property as belonging to him exclusively. In this case defendant Nos. 1 and 2 were brothers who Jointly possessed the suit property and other properties along with others as tenants in common and therefore the defendant No. 1 had no right to transfer or sell the house and Khandi in question. 5. It cannot be disputed that if the defendants along with others were jointly possessed of properties which they held as tenants in common, neither of them could have transferred or sold any particular properties comprised in the estate left by their father. This, however, pre-supposes the fact that there was no earlier partition. If there was earlier partition, then the possession of each co-sharer would in the absence of evidence to the contrary be referable to his title. There is no presumption in Mohammendan Law, as it is, in favour of jointness under the Hindu law and therefore, the general principle of attributing possession to a lawful title will apply. 6. Unfortunately for the appellants, both the Courts have concurrently found that the story of there being no earlier partition could not be accepted The trial Court in paragraph 15 of its judgment observed that though the plaintiff had not examined a single witness to show that a private partition was effected in his presence and in that partition the disputed shop and the Khandi were allotted to defendant No. 1, there was oral evidence on record to show that the disputed shop and Khandi were in possession of defendant No. 1. In the light of the evidence on record, it was not possible to believe that there was no earlier partition. In the light of the evidence on record, it was not possible to believe that there was no earlier partition. The learned Single Judge has also reached the same conclusion. It is worth noticing that Md. Raza Saheb, the father of the defendants is said to have died some time between the years 1925 and 1927 The learned Judge has noticed that the evidence on record indicated that defendant No. 1 was in exclusive possession of the suit property and there was a private partition between him and his co-sharers. The evidence of P.Ws. 2 and 3 established that defendant No. 1 had been in possession of the suit property for the last 15 years and that no one else was ever in possession of the suit property. The evidence of P.W.3 also corroborated the evidence of P.W.2 and in his deposition he stated that other co-sharers used to live separately, collect rent separately and were running business separately for 15 to 20 years. The learned Judge was not satisfied with the evidence produced by the defendants in this regard though some of the witness said in a general way that the suit property was in joint possession of defendant No. 1 and his co-sharers before the compromise decree. The learned Judge also noticed the recital in the agreement, Ext-3 that the suit property was in exclusive possession of the vendor and he had a valid title which he could convey by sale and that others had no concern with that property. On an appreciation of the evidence on record, the learned Judge held that the case put forward by defendant No. 2 that defendant No. 1 and his co-sharers continued in joint possession of all the inherited properties as tenants in common cannot be accepted. We find no reason to take a different view. If the father of the defendant died as early as 1925-27 leaving behind four sons and a daughter, and as the evidence on record shows that in each branch there were other members as well, it is not possible to believe that for almost 45-50 years different branches of the deceased continued in joint possession of several items and property which included 8-10 shops, houses etc. The evidence shows that during this period the heirs of the deceased separately possessed the properties and each one was managing his own affairs, collecting rent, carrying on business etc. Under these circumstances, the general principle, that possession must be referable to title would apply. The principle that the possession of a co-sharer would ensure to the benefit of other co-sharers unless ouster is proved, will not apply to the facts of this case because the evidence on record and the circumstances proved at the trial established that the heirs of the deceased Md. Raza had partitioned the estate left behind by him and each one of them separately enjoyed what fell to his share, That is explained by the fact that they lived separately, carried on business separately collected rent separately and enjoy without interference by others what may have fallen to their shares. In view of the concurrent finding that the heirs of Md. Raza including the defendants, were in separate possession of the properties which may have fallen to their shares. In view of the concurrent finding that the heirs of Md. Raza including the defendants, were in separate possession of the properties which may have fallen to their shares on partition, it cannot be held that the defendants were in joint possession of the suit properties as tenants in common. 7. Counsel for the plaintiff/respondent No. 1 relied upon a decision of the Madhya Pradesh High Court reported in A.I.R. 1958 Madhya Pradesh 209 (lshak Ali v. Mst. Unnasbi Porthahin Ors.) and submitted that the Rule of law is that possession is referable to a lawful title and between co-owners possession of one is referable to the title of the other, unless there has been an ouster. But where possession has continued for a considerable period of time exclusively with one co-owner and prime facie to the exclusion of other or others, this principle can hardly be applied. Their lordships placed reliance upon a judgment of the Privy Council reported in AIR 1947 Privy Council 15. 8. We, therefore find no merit in this appeal and the same is accordingly dismissed.