A co-owner of a property has the right to use and possess every inch of the joint land subject to the rights of her co-owner, but without interference from any trespasser.

( 1 ) THIS appeal is by the defendant and it arises out of a suit for permanent injunction restraining the defendant from entering into any portion of premises No. 101, Baithakkhana Road, Calcutta, and from creating any disturbance or obstruction by the plaintiff in constructing her house there.

( 2 ) THE plaintiff claimed title to the suit land originally as a co-owner to the extent of a moiety share, and, thereafter, by a partition, exclusive ownership.

( 3 ) ACCORDING to the plaint, the defendant was a trespasser, and, upon that footing, the above relief of permanent injunction was prayed for against the defendant.

( 4 ) THE defence was a denial of the plaintiff's exclusive title to the suit land, and a denial that there had been any valid partition between the plaintiff and her original co-owner sister Hiron Bala Mitra. The defence, further, was that the defendant was a tenant in respect of the disputed property, and accordingly, the plaintiff was not entitled to any relief against him, far less to any injunction.

( 5 ) THE learned trial Judge eventually decreed the plaintiff's suit, holding, inter alia, that the plaintiff had proved her exclusive title to the suit land, and that the defendant, though not originally a trespasser, was not a tenant by was a licencee at some stage, whose licence had been duly terminated, or, in other words, that, at the date of the suit, the defendant was in the position of a trespasser.

( 6 ) THE learned trial Judge in coming to his above conclusion also believed the plaintiff's evidence that she was in possession of the suit property and, upon that footing, gave her a decree for injunction, as prayed for by her in the plaint.

( 7 ) BEFORE us, Mr. Ghosal has seriously contended that the plaintiff, on the evidence before the Court, cannot be said to have proved any exclusive title to the suit property, as, in his submission, the partition, relied on by the plaintiff for that purpose, has not been proved by any valid evidence before the Court. He has, further, contended that, as, according to the plaintiff, the defendant was a trespasser, the plaintiff should not be given a decree on the footing that the defendant was a licencee, whose licence has been terminated. Mr. Ghosal has also urged that on the evidence before the Court, the learned trial Judge should have accepted the defence contention that the defendant was a tenant in respect of the suit property, as alleged by him. A technical objection was also raised that the present suit for injunction was not maintainable and the plaintiff's remedy, if any, lay in a suit for recovery of possession after making her co-owner sister Hiron Bala Mitra a party to the suit.

( 8 ) WE will deal with the points, raised by Mr. Ghosal, one by one. On the question of the plaintiff's exclusive title on the basis of the partition, alleged by her, Mr. Ghosal's submission seems to have some force. For proving the alleged partition, the plaintiff relies on a document which has been accepted as Ext. 1. This is described as a deed of partition, but it is not registered. The value of the property has been given therein as roughly in the neighbourhood of Rs. 40,000/ -. In the circumstances, if it is a deed of partition, in order to be effective, it must be registered. Otherwise, no title would pass under the same. The plaintiff attempted to wriggle out of his difficulty by arguing that the same was in reality a memorandum or record of partition, and that argument appears to have been accepted by the learned trial Judge.

( 9 ) WE, on our part, however, are unable to accept the same view, as the above document, Ext. 1, in its operative part, reads as follows: "we, for the benefit of us both make Sahams (Allotment) and partition of our properties in equal shares, described in schedule 1, 2 and 3 below, in the manner following:-Then follows the mode of actual partition. It will be impossible to regard this document, in view of its abov