1. This is an appeal under clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for recovery of possession of land upon declaration of title.
2. The facts as found by the Subordinate Judge may be briefly recited. The husband of the plaintiff and the second defendant were joint owners of an area of land covering 11 cottahs and odd. By mutual arrangement, the husband of the plaintiff occupied the eastern half of the land, and the second defendant the western half. While they were thus in possession, the first defendant took a conveyance of two cottahs of land from the second defendant. On the basis of title thus acquired the first defendant ousted the plaintiff from the two cottahs now in suit. The Court of first instance held that as the plaintiff had failed to prove, as alleged by her, that there had been a final partition of the entire tract, she was entitled to no relief. Upon appeal, the Subordinate Judge, held that the first defendant was in the same position as his vendor, the second defendant, and was not competent to disturb the possession of the plaintiff. The Subordinate Judge, however, did not give full effect to this conclusion, as he gave the plaintiff a decree, not for exclusive but only for joint possession. On second appeal to this Court, the first defendant urged that the suit should be dismissed and the plaintiff left to seek her remedy by way of a suit for partition. Mr. Justice Newbould has allowed this contention td prevail and has referred to the cases 6f Joy Chunder Rukhit v. Bippro Churn Rukhit  14 Cal. 236 and Watson & Co. v. Ramchund Dutt  18 Cal. 10. We are of opinion feat the view taken by Mr. Justice Newbould cannot be supported on principle and is not sustained by the authorities mentioned.
3. It is an elementary principle that Where joint owners have agreed to a mode of enjoyment of joint property, it is not open to one of them to disturb that arrangement without the consent of the others; Durga Charan v. Khundkar  27 C.L.J. 441. This is not inconsistent with the fundamental principle that in law each joint owner of an estate is regarded as having a joint proprietary right in the whole estate. That however is merely a right and must not be confounded with the manner of enjoying that right; it operates in strict law to prevent a co-owner from setting up a claim to any parcel as his exclusive property during the continence, of, the joint ownership. But where co-owners, by arrangement, either tacit or express, take up exclusive possession and enjoyment, of different parcels of the joint property, without such definition or severance of interest as would amount to partition, the Court will not interfere with the arrangement at the instance of one co-owner during the tenure incommon and will do so only on partition so far as may be necessary to make an equitable division of the property. This view is supported by the decisions in Madan Mohn v. Raja Apli  28 Cal. 223; Syed Ali v. Najab Ali  11 C.W.N. 143; Behary v. Kedar Nath  19 C.W.N. 872; Jagar Nath Singh v. Jai Nath  27 All. 88; Jagannath v. Badri Prasad  34 All. 113. The two decisions mentioned in the judgment now under appeal do not support the contention of the respondent. In the case of Joy Chunder Rukhit v. Bippro Churn Rukhit  14 Cal. 236, it was ruled that before a Court will, in the case of co-sharers, make an order directing that a portion of the joint property alleged to have been dealt with by one of the co-sharers without the consent of the other should be restored to its former condition (as, for instance, where a tank has been excavated), a plaintiff must show that he has sustained, by the act he complained of, some injury which materially affects his position. In the case of Watson & Co. v. Ramchund Dutt  18 Cal. 10, the Judicial Committee ruled that, where land was held by two persons in common, one of whom was in actual occupation of a part, cultivating it as if it had been his separate property, if the other attempted to enter upon the same land, in order to carry on operations thereon inconsistent with the work already being carried on by the former, who resisted and prevented his attempted entry, the resistance must be deemed to have been made by the co-sharer in occupation simply with the object of protecting himself in the profitable use of the land, in good husbandry and not in denial of the other's title, and that consequently such resistance was no ground for proceedings on the part of the other, to obtain a decree for joint possession or for damages. These propositions do not assist the contention of the first defendant. It was he who took the law into his own hands and disturbed the arrangement which had been agreed to by his vendor and by the husband of the plaintiff.
4. We are consequently of opinion that this appeal must be allowed, the decree of Mr. Justice Newbould set aside and that of the Subordinate Judge restored with costs. The appellant is entitled to the costs of both hearings in this Court.