A co-sharer of an undivided dwelling house is entitled to an injunction restraining a stranger transferee from exercising any act of joint possession.

( 1 ) THE hearing stems from an application under Article 227 of the Constitution of India filed by the petitioner praying for revision of the order dated 28. 06. 2005 passed by the learned Additional District Judge, Second Court, Maldah in Misc. Appeal 26/2003 setting aside the order being No. 8 dated 28. 10. 2003 passed by the learned Civil Judge (Jr. Div.), First Court, Maldah in O. C. Suit No. 141/03.

( 2 ) THE circumstances leading to the above application are that the petitioner's father Bibhuti Bhusan Das and his two brothers Bhupati Bhusan das and Manindra Mohan Das were joint owners of 1/3rd share each of a bastu land appertaining to R. S. Plot No. 1389, Khatian No. 341, Mouza Phulbari, P. S. English Bazar, Maldah, as described in schedule 'ka'. Bhupati died leaving behind four sons. The land was partitioned amongst Bibhuti, Manindra and the said legal heirs of Bhupati by a registered deed of partition dated 27. 2. 91, and 0330 sahasrangsha, as described in schedule 'kha', fell in the share of Bibhuti who constructed a dwelling house thereon and gifted 100 sahasrangsha each to his two sons i. e. the petitioner and Pro-O. P. No. 2 by two deeds dated 30. 04. 2002 and 130 sahasrangsha to his unmarried daughter Pro-O. P. No. 3 by a deed dated 07. 05. 2002 and thereafter he died. No demarcated portion was given by the said three deeds to the petitioner and pro-O. P. Nos. 2 and 3 who have been residing in the unpartitioned dwelling house of 'kha' schedule property and there are common passages on the extreme south and extreme west of 'ka' schedule. Pro-O. P. No. 3 sold her share in the undivided dwelling house by a registered deed dated 16. 12. 2002 to O. P. No. 1 who is trying to take forcible possession and make construction thereon. The petitioner instituted O. C. Suit No. 141/03 in the Court of learned Civil Judge (Jr. Div.), First Court, Maldah for declaration and injunction and filed another application under Order 39 Rules 1 and 2 read with Section 151, C. P. Code against O. P. No. 1 for injunction. The application for injunction was allowed on contest vide order dated 28. 10. 03 but reversed in misc. Appeal 26/03 by the learned Additional District Judge, Second Court, maldah by the impugned order dated 28. 6. 2003.

( 3 ) BEING aggrieved by and dissatisfied with the said order, the petitioner has come up before this Court.

( 4 ) MR. Sen, learned Counsel for the petitioner, relying upon the case of ashim Ranjan Das v. Bimla Ghosh, reported in AIR 1992 Cal 44 contended that when there was no partition by metes and bounds either by a deed of partition or by a decree of Court, as required under Section 14 of the West Bengal Land reforms Act amongst brothers and sister i. e. petitioner, O. P. Nos. 2 and 3 in respect of the undivided dwelling house in 'kha' schedule, the municipal holding number of which remains the same i. e. 13/14, which is under common enjoyment of the petitioner and Pro-O. P. Nos. 2 and 3, the petitioner being co-owner is entitled to protection of his privacy under Section 44 of the Transfer of Property act against the O. P. who is a stranger to the family.

( 5 ) MR. Banerjee, learned Counsel for the O. P. , on the other hand, on referring to Section 277 of the Hindu Law contended that according to Dayabhaga law so long as the father is alive, there is no coparcenary between him and his male issues and it is only on his death leaving two or more male issues that a coparcenary is formed, and as Bibhuti gifted the 'kha' schedule property during his lifetime to his sons and daughter, there cannot be any co-sharership between the said sons and daughter and that as the 'ka' schedule land was partitioned during the lifetime of Bibhuti the question of further partition and application of the provision of Section 14 (6)of the W. B. L. R. Act does not arise. Referring to the case of Labanya Bala Debi v. Parul Bala Debi reported in AIR 1973 Cal 367 and putting emphasis on the word "ce