JUDGMENT :- This appeal is at the instance of the plaintiffs and it arises out of a suit for injunction restraining defendant No. 1 from exercising any act of joint possession in respect of an undivided share of a dwelling house.

2. The case of the plaintiffs is that C. S. plots Nos. 553 and 509 to 513 constitute the homestead proper of the plaintiffs and C. S. plots Nos. 516, 504 and 554 are parts of the homestead being tanks or lands adjacent to the homestead. Recently defendant No. 1 who is a stranger to the family purchased from one of the co-sharers an undivided share in C. S. plots Nos. 516, 504 and 554 and was threatening to interfere with the plaintiffs possession. The plaintiffs accordingly prayed for an injunction in terms of the second paragraph of S. 44 of the Transfer of Property Act restraining defendant No. 1 from exercising any act of joint possession in respect of these three plots.

3. The defence of the principal defendant No. 1 was that the suit was not maintainable, that there was a partition of the dwelling house by metes and bounds, that in any event the defendant No. 1 had a right of easement in respect of the tank which is C. S. Plot No. 516.

4. The Court of First Instance decreed the plaintiffs suit in respect of C. S. Plots Nos. 516, 504 and 554 holding that they are parts of the undivided family dwelling house of the plaintiffs and that there was no partition by metes and bounds amongst the co-owners of the dwelling house, the question of the easement right being left open by consent.

5. On appeal by defendant No. 1 the decree of the trial Court was affirmed with regard to C. S. plots Nos. 504 and 554 but the decree of the Court of First Instance was modified with regard to plot No. 516. This plot No. 516 is a big tank. The Court of appeal below modified the injunction granted by the Court of First Instance in this way: That the injunction should stand in respect of the southern and western banks of the tank but it should be dissolved in respect of the northern and eastern banks and that the defendant should be entitled to exercise joint possession in respect of the northern and eastern banks but he will not be permitted to use any ghat on the southern and western banks of the tank.

6. The present second appeal is confined only to C. S. plot No. 516. With regard to plot No. 516 the Court of appeal below has come to the following findings :

"(a) It is no doubt adjacent to some of the bastu plots but it can hardly be said that the whole of this big tank is essential for the convenient use or enjoyment of the homestead;

(b) There are in all 7 or 8 ghats in it and only 3 of them on the south-west corner belong to the plaintiffs.... There are other ghats of strangers on the other side of this tank;

(c) In all probability the defendant who has land on the eastern bank of the tank has also a ghat on that side; and

(d) It seems to me rather inequitable and hard that the whole of such a big tank should be treated as an appurtenance of the homestead and the defendant kept out of its possession altogether."

Upon the aforesaid findings the appellate Court came to the conclusion that the plaintiffs were not entitled to an injunction restraining defendant No. 1 from using any portion of the tank jointly with the plaintiffs.

7. Mr. Chakravarty appearing in support of the appeal has argued, in the first place, that the decree for joint possession made by the Court of appeal below in favour of defendant no. 1 is illegal. This argument is quite sound. There could be no decree in favour of a defendant in a suit instituted by the plaintiffs. All that the Court could say was that the decree made by the Court of First Instance be modified in the manner indicated by the appellate Court, but the declaration of the right of joint possession of defendant No. 1 is certainly bad in law. But this is a mere matter of form.

On the merits of the case Mr. Chakravarty has argued that the appellate Court was wrong in law in modifying the decree o

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