JUDGMENT : 1. The instant Civil Second Appeal under Section 100 read with Order 41 Rules 1 and 2 of the Code of Civil Procedure has been filed by the defendant-appellants against impugned judgment and decree dated 31.8.1999 passed by learned District Judge, Tonk in Civil Regular Appeal No. 5/1992, whereby learned first appellate Court partly allowed the appeal filed by the defendant-appellants against the judgment and decree dated 6.12.1991 passed by the learned Additional Civil Judge and Judicial Magistrate, Tonk in Civil suit No. 187/81 (277/1984) decreeing the suit of the plaintiffs filed for cancellation of sale-deed and for possession of the disputed property. 2. The relevant facts of the case in brief are that the plaintiff Ram Narayan and Mst. Dhakha and Mst. Rampyari (respondent Nos. 6 and 7 respectively) filed a civil suit in the court of learned Additional Munsif, Tonk (hereinafter referred to as `the trial court') for cancellation of registered sale-deed dated 8.6.1971, allegedly executed by Ladu in favour of the defendants Kana and Moolia for a consideration of Rs.2,000/-. The plaintiffs also prayed for restoration of their possession over the land comprising Khasra No.1128 and 1129 (1391) measuring 14 Bighas and 10 Biswas. In the plaint, the plaintiff respondents stated that Ladu was the father of Ram Narayan, who died in 1977 and he, along with other respondents, being coparceners has half a share in the above land. The said land was purchased by Rewata, the father of Ladu who without any legal necessity sold the land to the defendants and because of this, the sale of the land was not binding on them and the same was ineffective. It was mentioned by the plaintiffs that the fact of the sale-deed came to their knowledge on 17.4.1980 when the mutation of the land was transferred in the name of the defendants. The plaintiff prayed that the alleged sale deed dated 8.6.1971 be cancelled and possession of the land in dispute be directed to be restored to them. 3. The defendant-appellants filed their written statement and denied the averments made in the plaint. It was mentioned that the suit property was sold to them by Ladu for the requirement of the family, which was well within the knowledge of the plaintiffs. It was also mentioned that registration of the sale-deed in the office of the Sub-Registrar operates as a notice to them under the law. It was mentioned that the suit property was sold to them by Ladu for the requirement of the family, which was well within the knowledge of the plaintiffs. It was also mentioned that registration of the sale-deed in the office of the Sub-Registrar operates as a notice to them under the law. The plaintiffs have neither disclosed the fact of ownership of their grand-father nor the fact of their being coparceners of the same. Therefore, it was prayed that the suit be dismissed. A specific plea of limitation was also raised. 4. On the basis of the pleadings of the parties, the learned trial court framed the following six issues:- 1- vk;k fooknxzLr Hkwfe la;qDr fgUnq ifjokj dh Fkh] ftlds yknw ,oa jkeukjk;.k dksiklulZ Fksa\ oknhx.k 2- vk;k yknw us fooknxzLr Hkwfe oS/kkfud vko’;drk gksus ds dkj.k izfroknhx.k dks fodz; dh gS\ izfroknhx.k 3- vk;k oknhx.k dks bl fodz; ds fo”k; esa vizSy lu~ 1980 esa Kku gqvk\ oknhx.k 4- vk;k izLrqr okn fe;kn ckgj gS\ izfroknhx.k 5- vk;k izLrqr U;k;ky; dks bl okn dks lquus dk vf/kdkj ugha gS\ izfroknh 6- vuqrks”k\ 5. To prove their case, plaintiff Ram Narayan was examined himself as (PW-1) and also got examined (PW-2)-Sheodan, (PW-3)-Heera. On behalf of the defendants (DW-1)-Kana, (DW-2)-Dhanna and (DW-3)-Kesra were examined. Both the sides got some documents exhibited in their favour. 6. The learned trial court after recording evidence and hearing the parties vide judgment dated 6.12.1991 decreed the suit of the plaintiff-respondents cancelling the sale-deed dated 8.6.1971 executed by Ladu in favour of the defendant appellants and holding the plaintiff-respondents entitled to possession of the disputed land. 7. Feeling aggrieved by the impugned judgment and decree of the learned trial court, the defendant appellants filed civil regular first appeal before the learned first appellate court. 8. The learned first appellate court vide impugned judgment and decree dated 31.8.1999 partly allowed the appeal holding that Ladu without necessity of the family was not entitled to sell the entire land in favour of the defendant appellants and the sale was held to be illegal. However, the learned first appellate court held the defendant-appellants entitled to get possession over the land which comes in the share of Ladu after getting it partitioned. 9. Hence, feeling aggrieved by the impugned judgments and decree of the courts below the defendant appellants have filed the present second appeal. 10. However, the learned first appellate court held the defendant-appellants entitled to get possession over the land which comes in the share of Ladu after getting it partitioned. 9. Hence, feeling aggrieved by the impugned judgments and decree of the courts below the defendant appellants have filed the present second appeal. 10. This Court vide order dated 17.8.2000 has admitted the appeal on the following substantial question of law:- “Whether, holding the plaintiffs entitled ½ share in the property, the appellants could be directed to get a decree for partition and deliver the possession to the respondents ?” 11. It is submitted by the learned counsel for the appellant Sh. J.P. Goyal that both the courts below have erred in holding that the suit was governed by Article 109 of Limitation Act. He submitted that the suit is not governed by Article 109 of the Act but is governed by Article 59 and 65 of Limitation Act and the present suit is clearly barred by limitation. It is submitted that the learned appellate Court has erred in law in holding that the defendant-appellants should get a partition from a competent Court and to transfer possession of ½ share in the property after the partition to the plaintiff-respondents. He submitted that even if it is assumed that the plaintiffs were entitled to get ½ share in the property it was for them to file a suit for partition and get the share determined and to get possession thereof from the competent court of law. In view of this, the appellate Court's judgment and decree cannot be sustained. He relied upon AIR 1989 110 Dropdi Devi and others vs. Jagdish Chandra and others and AIR 1972 Orissa 206 (V 59 C 64) Bhagirathi Rout Vs. Gopal Charan Rout and others. 12. On the other hand, learned counsel for the respondents Sh. Nitin Jain submitted that there is no evidence on record which shows that the plaintiff had knowledge of the sale in favour of defendants. The plaintiff-Ramnarain was residing in Delhi, therefore, it cannot be said that he had knowledge of the sale deed-(Ex.-1) The learned trial Court, after considering the evidence, rightly held that in the facts and circumstances of the case, Article 109 of the Limitation Act would apply in the present case and Articles 59 and 65 have no application. The plaintiff-Ramnarain was residing in Delhi, therefore, it cannot be said that he had knowledge of the sale deed-(Ex.-1) The learned trial Court, after considering the evidence, rightly held that in the facts and circumstances of the case, Article 109 of the Limitation Act would apply in the present case and Articles 59 and 65 have no application. On the point of Limitation, both the Court below have concurrently held that suit was filed within the prescribed time of Limitation. It is submitted that the learned appellate Court has rightly directed to the defendants that they should file a suit for partition for getting their share in the disputed property. 13. I have considered rival submissions made by the learned counsels for both the parties. 14. There is no evidence on record which suggests that the parties are not governed by Hindu Law of Mitakshra, therefore, the learned Courts below have rightly held that the suit would be governed by Article 109 of the Limitation Act. Additionally, it is revealed from the evidence that the defendant-Ramnarain was residing in Delhi and he occasionally used to visit his village. It transpires from the evidence that defendants were in possession of the disputed property prior to the sale deed. In these facts and circumstances of the case and evidence available on record when Ramnarain got the knowledge about the sale deed i.e. 17/04/1980, he filed the present suit on 03/10/1981 which is within the prescribed period of Limitation. 15. In addition to the above, in the present matter the question of Limitation is a mixed question of law and fact and both the Courts below after examining the evidence on record concurrently held that the suit was filed within the prescribed period of Limitation. No substantial question of law was involved, therefore, when the appeal was admitted, no substantial question of law was framed on the point of the Limitation. 16. So far as the next submission made by the learned counsel for the appellant is concerned, I find no substance in it. The learned appellate Court cancelled the sale deed with regard to the ½ share and a decree for possession has been granted in favour of the respondents. Admittedly, the disputed land is ancestral property and plaintiff's are co-sharers in the land in question and the defendants subsequently purchased the land in question from other co-sharer. The learned appellate Court cancelled the sale deed with regard to the ½ share and a decree for possession has been granted in favour of the respondents. Admittedly, the disputed land is ancestral property and plaintiff's are co-sharers in the land in question and the defendants subsequently purchased the land in question from other co-sharer. In my considered view, the only manner in which an outsider can get possession is to sue for possession and claim separation of his share. So long as the stranger/purchaser does not seek actual division, and possession, either in the suit or in execution, it cannot be said that he has sued for partition. 17. In Ramdas Vs. Sitabai and Others (2009) 7 SCC 444 , the Hon'ble Apex Court has observed as under:- “15. It could not also be disputed that all the aforesaid four plots of land which are the suit property were joint property and therefore, the plaintiff Sitabai and Defendant 1 Sudam owned and possessed half undivided share each in all the four properties. Defendant 1 Sudam who is the brother of the plaintiff Sitabai could not have therefore sold the entire Gat No. 19 area admeasuring 2.56 H of Mouza Padoli in favour of Defendant 3 Ramdas (the appellant herein) inasmuch as the aforesaid land was undivided and the plaintiff Sitabai and Defendant 1 Sudam were two co-sharers in the said property. In that view of the matter, the High Court was correct and legally justified in declaring the plaintiff Sitabai as the owner and holder of half of the shares in all the four aforesaid properties which are undivided. Defendant 1 Sudam being a co-sharer could not have sold by a registered sale deed more that his share nor could he have delivered possession till the said property is partitioned by the parties amicably or through the intervention of the court according to their share. 16. It is settled law under the Transfer of Property Act, 1882 that a purchaser cannot have a better title than what his vender had. The possession which is claimed by Defendant 3 Ramdas (the appellant herein) in respect of the entire land bearing Gat No. 19 area admeasuring 2.56 H of Mouza Padoli was also illegal and without proper sanction of law. The possession which is claimed by Defendant 3 Ramdas (the appellant herein) in respect of the entire land bearing Gat No. 19 area admeasuring 2.56 H of Mouza Padoli was also illegal and without proper sanction of law. So long as the property is joint and not partitioned, Defendant 3 Ramdas (the appellant herein) is not entitled to get possession of the said land. Even otherwise, the appellant herein having purchased the land from Defendant 1 Sudam could be entitled to be declared at the most to the extent of half-share of the said piece of land having stepped into the shoes of his vendor and could not have asked for and claimed ownership and possession over the entire land of Gat No. 19 admeasuring 2.56 H. 17. Without there being any physical formal partition of an undivided landed property, a c-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao v. M. Narasimhaswami wherein this Court stated as follows: (AIR p. 473, para 5) “5. ... Now, it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased.” 18. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this court in Sidheshwar Mukherjee v. Bhubneshare Prasad Narain Singh wherein this Court held as under: (AIR p.491, para11) “11. ... All that [vendee] purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.” 19. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.” 19. In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject-matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the court.” 18. The Supreme Court in Gajara Vishnu Gosavi vs. Prakash Nanasaheb Kamble and others (2009)10 SCC 654 holds:- “11. In a recent judgment in Ramdas v. Sitabai, (2009)7 SCC 444 to which one of us (Dr. B.S. Chuhan, J.) was a party, placing reliance upon two earlier judgments of this Court in M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470 and Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 487 this Court came to the conclusion that a purchaser of a coparcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property. 12. There is another aspect of the matter. An agricultural land belonging to the coparceners/co-sharer may be in their joint possession. The sale of undivided share by one co-sharer may be unlawful/illegal as various statutes put an embargo on fragmentation of holdings below the prescribed extent. 13. Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a coparcener can be a subject-matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a court in a partition suit, or by settlement among the co-shareres. (at pp.656, 657)” 19. So far as the case of Dropdi Devi and others (supra) is concerned, the ratio propounded in that case is not applicable to the facts and circumstances of the case. (at pp.656, 657)” 19. So far as the case of Dropdi Devi and others (supra) is concerned, the ratio propounded in that case is not applicable to the facts and circumstances of the case. In the said case, undivided share of coparceners was purchased at auction sale and possession was also obtained. In these circumstances, the Court held that the purchaser can retain possession over the portion till the matter is decided in partition suit. But in the present case, the sale deed by which the defendant purchased the property, has been cancelled for the ½ share, therefore, the defendants have been rightly directed by the learned appellate Court to file the suit to get the property partitioned by metes and bounds. The substantial question of law is answered accordingly. In the result, this appeal is devoid of merits and hence, is dismissed.