JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the parties. During argument it appeared that the matter may be decided on merits on the basis of admitted facts. Therefore, it is accordingly decided. 2. It is admitted fact that Inamatullah was owner of the disputed house. After his death, Inamatullah left behind his widow Nisar Begum and two daughters namely Munno Begam and Jummo Begum. After his death his widow Nisar Begum has executed sale-deed dated 18.6.1999 of whole of the property of her husband Inamatullah in favour of sons of Munno Begam (Defendants No. 3 to 6). Then husband, sons and daughters of Jummo Begum (plaintiffs of original suit) had filed original suit for cancellation of sale-deed dated 18.6.1999 executed by Nisar Begum in favour of defendants No. 3 to 6. 3. In Original Suit No. 535/2007, case of the plaintiff was that Nisar Begum had no right to execute the sale-deed of whole of the property and her two daughters are also co-sharer of the disputed property. Therefore, the sale-deed executed by Nisar Begum is liable to be cancelled. The plaintiffs had also pleaded that Inamatullah had executed an oral gift (Hiba zubani) on 25.12.1981 of disputed property in favour of his two daughters. Therefore, after death of Inamatullah, her two daughters, Munno Begum and Jummo Begum became owner of equal shares of the disputed house and Nisar Begum had no right to execute sale-deed of this property. 4. The plaintiffs had instituted suit for permanent injunction and cancellation of sale-deed regarding disputed property claiming themselves to be co-owners and in possession of this property. But during pendency of the suit they were evicted from the disputed house (on 26.12.2007) in compliance order dated 21.12.2007 of the District Magistrate. 5. After admitting written statement, framing issues and accepting the evidences of the parties, the Court of Additional Civil Judge-S.D. (ACJM-III), Shahjahanpur had decreed the suit by its judgment dated 10.7.2015. By this judgment, registered sale-deed dated 18.6.1999 executed by Nisar Begum in favour of defendants No. 3 to 6 was cancelled and defendants were directed to handover the possession of the portion of property detailed in said order from which they were dispossessed during pendency of the suit. By this judgment, registered sale-deed dated 18.6.1999 executed by Nisar Begum in favour of defendants No. 3 to 6 was cancelled and defendants were directed to handover the possession of the portion of property detailed in said order from which they were dispossessed during pendency of the suit. In this judgment, the trial Court appreciated the evidences and held that alleged oral gift (Hiba Zubani) pleaded by plaintiffs was not proved; but after the death of Inamatullah and Nisar Begum their two daughters Munno Begum and Jummo Begum became co-owners in possession of the disputed house. Since plaintiff were evicted during pendency of the original suit, therefore they are entitled to recover its possession. Accordingly trial Court had also directed the defendant to handover possession of that portion of the property from which plaintiffs were dispossessed. 6. Aggrieved by judgment of the trial Court, the defendants of the original suit had preferred Civil Appeal No. 65/2015 which was heard and allowed by judgment dated 7.10.2015 of the Additional District Judge, Court No. -7, Shahjahanpur. By this judgment the decree passed in original suit was set aside. In this judgment the first appellate Court had accepted the finding of the trial Court that Nisar Begum had no right to execute the sale-deed of that portion of the disputed house which was in excess of her share. The first appellate Court had also held that plaintiffs and defendants are joint owners of the disputed property and their shares are in accordance with Muslim Law of succession for the property inherited from Inamatullah. First appellate Court had also held that apart from its share as natural successor, the defendants are also entitled to have ownership of share of Nisar Begum, who had sold her share to defendants No. 3 to 6. This finding on rights of parties given by the trial Court was confirmed by the first appellate Court; but the first appellate Court had dismissed the whole of the original suit only on the ground that since the plaintiffs are not in possession of disputed property so they are not entitled for relief of permanent injunction. 7. Aggrieved by this judgment of the first appellant Court, the present Second Appeal has been preferred by the plaintiffs of the original suit. 8. 7. Aggrieved by this judgment of the first appellant Court, the present Second Appeal has been preferred by the plaintiffs of the original suit. 8. Learned counsel for the appellant contended that this finding of the first appellate Court is correct that there is 7/16 share of plaintiff-appellants which is in accordance with Muslim Law of Succession, so this point needs no further re-consideration. He pleaded that judgment of the first appellate Court is erroneous on point of dismissing the appeal in absence of possession because this plaintiffs were dispossessed by defendants during pendency of the original suit. This important point was not considered by the first appellate Court and therefore erroneous judgment of allowing the appeal was passed. 9. Learned counsel for the respondents refuted the contentions of the counsel for the appellants side and contended that although parties may be co-owners of the disputed property, but defendant-respondents are in its exclusive possession, so only remedy available to appellants are to initiate proceedings in Court for partition of the disputed property and get possession of their share. He pleaded that in absence of possession of disputed property plaintiffs-appellants are not entitled for relief of injunction or any other relief, so the appeal should be dismissed. 10. Although the plaintiff-appellants had taken plea of oral gift, but the same has not been approved. Finding on that point given by the lower Court is not erroneous, therefore said finding is confirmed and cannot be interfered in second appeal. 11. So far as claim of ownership is concerned, there is admitted legal position that after death of Inamatullah, his widow should could get maximum 1/8 share of his property. So the sale-deed executed by Nisar Begum in favour of defendants No. 3 to 6 is liable to cancelled for remaining 7/8 share of whole of the property, and this sale-deed was valid only for 1/8 share of Nisar Begum. Remaining 7/8 share of property of Inamatullah, in absence of any other evidence of transfer, came in equal shares of 7/16 each to his daughters Munno Begum and Jummo Begum. Thus adding 1/8 share of Nisar Begum the defendants (Munno Begum family) became owner of 9/16 share of property left by Inamatullah, and plaintiffs (Jummo Begum family) became owner of 7/16 share. Such finding given by first appellate Court is in accordance with Muslim law of succession and is correct, which is confirmed. Thus adding 1/8 share of Nisar Begum the defendants (Munno Begum family) became owner of 9/16 share of property left by Inamatullah, and plaintiffs (Jummo Begum family) became owner of 7/16 share. Such finding given by first appellate Court is in accordance with Muslim law of succession and is correct, which is confirmed. 12. It is admitted in additional written-statement of the defendant-respondents that they have obtained possession of that portion of disputed property on 26.12.2007 during pendency of suit, which was earlier in possession of plaintiffs. The plaintiffs had filed original suit also for relief of permanent injunction on 6.7.2004 and from above discussion it is true that not only they were co-owners of this property but were also in its possession. Therefore, at the time of institution of suit they were entitled to retain their possession. Since plaintiff-appellants were dispossessed during pendency of suit, therefore their dispossession is apparently illegal. So they are entitled to recover its possession. On this point, first appellate Court had committed serious error when it had not considered the relevant facts and the points that the plaintiffs were dispossessed from disputed property during pendency of the original suit. Since at the time of institution of suit, plaintiffs were entitled to retain their possession, so after being dispossessed from it illegally during pendency of the suit, they are entitled to recover back its possession. In this regard finding of first appellate Court is found erroneous and perverse, and is set aside. It is accordingly held that plaintiff-appellants are entitled to recover the possession of property over which they were in possession at the time of institution of the suit. 13. So far as contention of learned counsel for the respondent about partition is concerned, it may be correct that dispute between parties shall come to an end only after the partition. But that matter should be decided after recovery of possession of the property from which plaintiff-appellants were illegally dispossessed. 14. On the basis of above discussion, this appeal is allowed. The judgment dated 7.10.2015 of first appellate Court passed in Civil Appeal No. 65/2015 is set aside and original suit is decided in the way that sale-deed executed by Nisar Begum in favour of defendants No. 3 to 6 is cancelled to the extent of 7/8 share. Relief sought by plaintiff-appellants regarding recovery of possession is allowed and original suit is accordingly decreed. Relief sought by plaintiff-appellants regarding recovery of possession is allowed and original suit is accordingly decreed. The plaintiffs-appellants are entitled to get possession of all that portion of the disputed property over which they were in possession before 26.12.2007, which was the date of their dispossession. The defendant-respondents are directed to handover the possession of that property from which the plaintiffs were dispossessed during pendency of the suit and maintain status quo ante, failing which plaintiffs-appellants would be entitled to recover its possession through process of Court of the expense of defendants-respondents. 15. Since the plaintiffs-appellants were dispossessed in compliance of the order of the District Magistrate, Shahjahanpur, therefore the District Magistrate, Shahjahanpur is directed to ensure the compliance of this order within a month. 16. Let the copy of this judgment be sent to lower Court and also to District Magistrate, Shahjahanpur for ensuring compliance. ———————