A co-owner is not entitled to an injunction restraining another co-owner from exceeding his right in the common property, absolutely and simply because he is a co-owner.

( 1 ) THIS is an appeal against judgment and decree of reversal Plot Number 83 Mouja Andul I. S. Sankrail is a common passage in which the plaintiffs and the defendants, as transferees, are co-sharers. The common passage is flanked on one side by the houses of the plaintiffs, Nos. 1 and 2 and on the other side by the houses of the plaintiff No. 3 and other defendants. According to the plaintiffs' case, the common passage was created for ingress and egrees, space for repairs of structures, passage for light and air, and rainwater and also for lying electric wires. There was an agreement to keep the common passage open to the sky for beneficent enjoyment of the dwelling houses on either sides of the common passage and their privacy was thereby maintained. The defendants by force completed all arrangements to construct a balcony from their house over the common passage. It was said that the defendants had no right to make such construction, which if made would cause permanent obstruction to the common passage and change its nature and character causing irreparable injury t the other owners, the plaintiffs. The plaintiffs in the circumstances instituted the suit for permanent injunction restraining the defendants from making any construction over the common passage.

( 2 ) THE defendants filed their written statement denying that there was nay agreement among co-sharers to keep the common passage free upto the sky. Further, it was said, there would be no obstruction to the common passage as the balcony, 16 2/3' x 2?', would be supported by the first floor roof of the defendants' house, covering only an insignificant portion of the common passage while there would be no occasion for affecting the light and air to the plaintiffs' residences as they are far away from the proposed balcony.

( 3 ) THE learned Munsif, on a trial of evidence, held that every co-sharer has the right to use every part of the joint pathway, which was not a public pathway. The proposed construction would reduce the gap of 5?' to 3' encroaching the pathway. The defendants had no such right to encroach the common pathway and the question of encroachment light and air or of agreement was immaterial. The suit was accordingly decreed and the defendants were permanently restrained from making any construction over the common passage.

( 4 ) THE appellate court reversed the decree on the finding that the suit passage after vesting of raiyat's interest on enforcement of Chapter VI of the West Bengal Estates Acquisition Act, 1953 was no longer common. The common passage was recorded in four khanda khatians, Khatian Nos. 113 and 53 in the name of the plaintiff in. 04 and. 01 sataks while khatian Nos. 54 and 932 in the name of the defendants in nil and. 01 sataks respectively. Relying on the decision in Madan Mohan v. Sishu Bala, A. I. R. 1972 Cal. 502, the Court held that as the co-sharers of the holding ceased to be co-sharers and each raiyat of the holding became a direct tenant under the State to retain, the common passage ceased to be a common passage from the date of vesting. There was no proof that the proposed projection would be beyond the portion of the defendants' khatian and no agreement to keep the suit land free was established. Accordingly, the appeal was allowed and the suit was dismissed. The present appeal is against this decision.

( 5 ) BEFORE we proceed to consider the points in controversy in appeal, the appellate judgment holding that common passage was no longer common after enforcement of Chapter VI may be examined. There is no dispute that after vesting of raiyat's interest an undivided share in the land can be the subject-matter of a separate tenancy and can constitute a holding of a raiyat or under-raiyat as has been held in the said decision. If a plot of land continues to be jointly owned in undivided share by different persons after vesting even as part of their separate tenancy, they become joint owners of such land and a