JUDGMENT 1. The subject-matter of the litigation, which has given rise to this appeal, is a parcel of land comprised in holding No. 129 in the khas mehal of the Government in Cossipur in the Northern Suburbs of Calcutta. The Plaintiffs and the second and third Defendants were admittedly the owners of the holding No. 129 in which the Plaintiffs had a five-sixth share and the two Defendants had an one-sixth sharp. In 1884 an action for partition was brought in the Court of the Subordinate Judge of the 24- Pergunnahs in respect of this holding. The preliminary decree by which the shares of the parties were determined was made in due course and a Commissioner was appointed to effect a division by metes and bounds of all the lands comprised in the holding. By a mistake of the parties to the litigation, which was shared by the Commissioner, the portion now in dispute was omitted from the Report. As a matter of fact, this portion was, at the time, covered with jungle and was separated from the rest of the land by a ditch. The aspect of the locality indicated that the land now in dispute was not included in holding No. 129 which had been directed by the preliminary decree to be mapped out and partitioned. The result was that the final decree in the partition suit dealt with the lands of the holding other than what is the subject-matter of controversy in the present litigation. 2. The Plaintiffs allege that in 1901 the second and third Defendants took exclusive possession of the disputed lands, ousted the Plaintiffs and settled the properly with the first Defendant. Under these circumstances, they commenced this action on the 11th of June 1903 for declaration of their title, for recovery of possession and for partition. At a subsequent stage of the proceedings the Plaintiffs abandoned their claim for partition and the plaint, as it now stands, is appropriate to a suit for recovery of joint possession. The claim also originally included a sum of Rs. 30 as compensation for damage done to trees. This part of the claim, however, was also subsequently withdrawn. The suit was contested by the first Defendant as also by their landlords. The claim also originally included a sum of Rs. 30 as compensation for damage done to trees. This part of the claim, however, was also subsequently withdrawn. The suit was contested by the first Defendant as also by their landlords. The former set up the title of the second and third Defendants and the latter claimed title by adverse possession for the statutory period; they also contended that inasmuch as holding No. 129 had formed the subject-matter of the previous suit for partition, the Plaintiffs were not entitled to maintain the present action. 3. The Court of first instance held that the suit was maintainable, and that the title of the Plaintiffs had not been extinguished by adverse possession on the part of their co-sharers. In this view of the matter, a decree was made in favour of the Plaintiffs. Upon appeal the learned District Judge has reversed this decision. He has found, upon the evidence, that the disputed land was waste at the time of the previous partition suit, and was omitted by mistake from the proceedings of the Commissioner, and consequently, from the final decree; but he has held that the Plaintiffs never had joint title to the land in dispute after the partition of 1884 and, as they had failed to establish possession within 12 years of the suit, their claim must be dismissed. 4. The Plaintiffs have now appealed to this Court and on their behalf the decision of the District Judge has been challenged, substantially, on two grounds, namely, first, that in spite of what had happened in the suit for partition, the Plaintiffs were entitled to have their joint title to the disputed property declared and to be placed in joint possession thereof; secondly, that Inasmuch as the Plaintiffs and the second and third Defendants were co-owners, their title was not extinguished by adverse possession as the Defendants had failed to prove that there was a disclaimer by the assertion of a hostile title and notice thereof to the Plaintiffs. 5. 5. In support of the first point taken on behalf of the Appellants, it has been argued by their learned vakll that, as the final decree in the partition suit admittedly did not deal with the disputed lands, the joint title of the co-owners was not in any manner affected thereby, and, as the exclusion from the partition decree was due to the mistake of the parties, the Plaintiffs are not precluded from asserting their title to the property. It has been argued, on the other hand, by the learned Counsel for the Respondents that, as the preliminary decree directed the partition of all the lands comprised in holding No, 129 and consequently of the lands now in dispute, the proper and sole remedy of the Plaintiffs Appellants is to reopen the decree in the partition suit when they might obtain the appropriate relief. After careful consideration of the arguments, which have been addressed to us on both sides, we are of opinion that the contention of the Appellants ought to prevail. In our opinion, the effect of the decree in the partition suit was to leave unaffected the joint title and possession of the parties in the disputed land. It is obvious that there was no partition in fact, so far as these lands are concerned, for partition is the division made between several persons of joint lands, which belong to them as co-pro-prietors, so that each becomes the sole owner of the part which is allotted to him. The mere definition of the shares of the joint proprietors does not amount to partition of the property, although such determination may, as pointed out by their Lordships of the Judicial Committee in Joynarain v. Girish Chunder L.R. 5 I.A. 228: s.c. ILR 4 Cal. 434 (1878) and Chidambaram v. Gauri ILR 2 Mad. 83; L.R. 6 I.A. 177 (1879), effect a severance of the joint interest. To effect a partition, however, the property if susceptible of division must be transformed into estates in severalty and one of such estates assigned to each of the former occupants for his sole use and as his sole property. If this view were not adopted, the very object of the partition might be completely defeated. To effect a partition, however, the property if susceptible of division must be transformed into estates in severalty and one of such estates assigned to each of the former occupants for his sole use and as his sole property. If this view were not adopted, the very object of the partition might be completely defeated. Co-owners may desire to terminate their property relations with one another and thus avoid a continuance of that discord and irritation which must necessarily attend an association compelled by joint interest but reprobated by every other consideration. If it were held that the mere determination of the shares by the preliminary decree was tantamount to partition, co-owners would have to enjoy their property jointly which is precisely what they intend to avoid. If, therefor?, we hold that the effect of the preliminary decree in the suit for partition was not to effect a partition of the disputed lands, it is clear that the effect of the final decree was unquestionably not to effect a partition, it is the common case of both parties that by a mistake the lands, now in dispute, were excluded from the report of the Commissioner and were not dealt with by the final decree. 6. How then, can it be contended that the disputed lauds were partitioned in the former litigation 1 One test seems to be conclusive. If the lands were partitioned to the share of which co-sharer were they awarded? The learned Counsel for the Respondents found himself unable to furnish an answer to this question. He argued, however, that as the lands formed the subject-matter of the previous litigation, the present action is not maintainable either for the recovery of joint possession or for partition. In our opinion, this contention is not well-founded on principle and is not supported by any authorities. A very similar question arose in the case of Barnes v. Boardman 157 Mass 479 32 N.E. 670, which related to a partition of joint property. It transpired in the course of the suit that an action had been previously brought for partition of an estate of which the disputed lands formed part, but that, by a mistake of the parties as to their legal rights, these lands had been excluded from the previous suit in which the decree for partition was made in respect only of the land comprised in that action. It was argued on behalf of the Defendants that, as the lands had not been included in the previous suit, they could not form the subject matter of another litigation. This contention was overruled. Mr. Justice Knowlton, who delivered the judgment of the Supreme Judicial Court of Massachusetts, observed as follows :--"It is contended that the Court will not make an order for a partition of a part only of an estate held by tenants in common and that, therefore, when a partition has been made which does not include all the lands that should have been included, the Court will not, in a new proceeding, do that which should have been done in the original suit, It is true that a petition for a partition of a part of an estate held by tenants in common will not be entertained against the objection of any person interested. Ordinarily, a petition of this kind should include the entire estate held in common, but it does not follow, if by mistake or by the consent of all the tenants, a partition has been made of a portion of their estate, whether by order of the Court or otherwise, that the Court is powerless to divide the remainder on a petition of one or more tenants in common. It would be a harsh rule that, after a division of a part of an estate, partition of the remainder could never be ordered by the Court. When parties have acted innocently and fairly in making or obtaining a division, which does not cover all their estate, there is no reason why the law should not aid them when they ask for a division of the remainder. The parties seem to have proceeded under a mistake in regard to their legal rights and nothing appears on either side to affect the right which Petitioners would have in any such case, if they had, by common consent, obtained the partition of a part of an estate held in common and subsequently found that a partition of the remainder of it was desirable." 7. This view appears to us to be consistent with principles of justice, equity and good conscience and is supported by the decision in the case of Cartwell v. Chambers 54 S.W. 362 and by the observations of their Lordships of the Judicial Committee in Jagajat Singh v. Sarabjit Singh ILR 19 Cal. This view appears to us to be consistent with principles of justice, equity and good conscience and is supported by the decision in the case of Cartwell v. Chambers 54 S.W. 362 and by the observations of their Lordships of the Judicial Committee in Jagajat Singh v. Sarabjit Singh ILR 19 Cal. 159 at p. 172 (1892). We must consequently affirm without hesitation, the doctrine that, although a co-owner cannot enforce a partition of a part only of the common lands leaving the rest undivided, and although the entire property must be included in the partition, yet if by mistake or by consent of the co-owners, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise, there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners. The conclusion is, therefore, irresistible that the effect of the decree in the partition suit was to leave untouched the joint title and possession of the parties and that the present suit for recovery of joint possession may well be maintained. 8. The second ground taken on behalf of the Appellants raises the question whether their title has been extinguished by adverse possession on the part of their co-sharers, the second and third Defendants. In our opinion, this question must be answered in the negative. The principles which are applicable to cases of this description, in which the question arises as to whether the possession of one co-owner has been adverse to that of another, must now be taken to be well settled. The fundamental rule is that the entry and possession of land, under the common title of one co-owner, will not be presumed to be adverse to the others, but will ordinarily be held to be for the benefit of all. The obvious reason for this rule is that the possession of one co-owner is in itself rightful and does not imply hostility as would the possession of a mere stranger. To use the language of Mr. The obvious reason for this rule is that the possession of one co-owner is in itself rightful and does not imply hostility as would the possession of a mere stranger. To use the language of Mr. Justice Story in Record v. William 7 Wheaton 107 "the law will never construe a possession tortious unless from necessity; on the other hand, It will consider every possession lawful the commencement and continuance of which is not proved to be wrongful, and thus upon the plain principle that every man shall be presumed to act in obedience to his duty until the contrary appears." In other words, as the same learned Judge put it in Prescott v. Nevers (1827), 4 Mason 326; 19 Fedtral Case 1286, "the only difference between the possession of a co-owner and other oases is that acts which if done by a stranger would per se be a disseisin, are in the case of tenancies in common, susceptible of explanation consistently with the real title; acts of ownership are not, in tenancies in common acts of disseisin, it depends upon the intent with which they are done and their notoriety; the law will not presume that one tenant in common intends to oust another; the fact must be notorious and the intent must be established in proof." It follows couseqently, that one co-owner may hold adversely to his co-parcener, and if his possession is continued uninterruptedly for the statutory period, he will acquire an indefeasible title, Doe v. Prosier 1 Cowper 217 (1774), Doe v. Taylor 5 B. and Ad. 676 (1838). This is true whether the original entry was with intent to hold adversely or whether the entry was that of a tenant in common. 676 (1838). This is true whether the original entry was with intent to hold adversely or whether the entry was that of a tenant in common. Much stonger evidence however is required to show an adverse possession held by a tenant in common than by a stranger, and a co-tenant will not be permitted to claim the protection of the statute of limitations, unless it clearly appears that be has repudiated the title of his co-tenant and is holding adversely to him it must further be established that the fact of adverse holding was brought home to the co-owner, either by Information to that effect given by the tenant in common asserting the adverse right or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenant that an adverse possession and desseisin are intended to be asserted, in other words in the language of Chief Justice Marshall in Mcclung v. Ross 5 Wheaton 116(124) "a silent possession accompanied with no act, which can amount to an ouster or give notice to his co-tenant that his possession is adverse ought not to be construed into an adverse possession." Mere possession, however, exclusive or long continued, if silent, cannot give one co-tenant in possession, title as against the other co-tenant. [See Clymer v. Dawkins 8 Howard 674, in which it was ruled that the entry and possession of one tenant in common, is ordinarily deemed the entry and possession of all the tenants; and this presumption will prevail in favour of all, until some notorious act of ouster or adverse possession by the party so entering is brought home to the knowledge or notice of the other; when this occurs, the possession is from that period, treated as adverse to the other tenants]. 9. This view is identical with what has been adopted by this Court in the cases of Mahomed Ali Khan v. Khaja Abdul Ganny I. L R. 9 Cal. 744 (753 and 754) (1883), Baroda Sundari v. Annoda Sundari 3 C.W.N. 744 (1898) and Ujalbi Bibi v. Umakanta Karmokar 9 C.W.N. 82; s.c. ILR 31 Cal. 970 (1904). The same conclusion is supported by the case of Ittappan v, Manavikrama ILR 21 Mad. 744 (753 and 754) (1883), Baroda Sundari v. Annoda Sundari 3 C.W.N. 744 (1898) and Ujalbi Bibi v. Umakanta Karmokar 9 C.W.N. 82; s.c. ILR 31 Cal. 970 (1904). The same conclusion is supported by the case of Ittappan v, Manavikrama ILR 21 Mad. 153 (156) (1897) and by the principles, which regulate the relation between joint owners, as explained in the cases of Mohes Narayan v. Nawbut Pattak ILR 32 Cal. 837: s.c. 1 C.L.J. 437 (1905), Jagarnath v. Jainath I.L.R 27 All. 88 (1904) and Phani Singh v. Nawab Singh ILR 28 All. 161 (1905). 10. If, therefore, it is for the Defendants to show not merely that they have been in Bole occupation of the disputed lands but also that there has been a disclaimer by the assertion of a hostile title and notice thereof to the Appellants, either direct or be inferred from notorious acts and circumstances, what is there position? The learned District Judge found that the circumstances which put the Plaintiffs to the knowledge of the infringement of their rights, was the execution of a lease by the tenants in favour of the Respondents on the 22nd of September 1892. If so, the title of the Plaintiffs was clearly in existence and was enforceable on the 11th of June 1903, when the present action was commenced. The difficulty in the way of the Defendants-Respondents, however, does not terminate here, The facts found by the learned District Judge in his judgment show conclusively that the user of the land by them or their tenants was of a description which could not possibly create in them a title by adverse possession to the whole of the lands now in controversy. As was observed by their Lordships of the Judicial Committee in the case of Radhamoni v. Collector of Khulna 4 C.W.N. 597 : s.c. L.R. 27 I.A. 136; ILR 27 Cal. 943 (1900) to prove title to land by adverse possession for the statutory period, it is not sufficient to show that same acts of possession have been done, the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor, in other words, the possession must be actual, visible, exclusive, hostile, and continued during the time necessary to create a bar under the statute of limitations; or as observed by Mr. Justice Clifford in Armstrong v. Monill 14 Wallace 145 and by Mr. Justice Maclean in Darnell v. Dela Langa 20 Howard 34 the possession in order that it may bar the recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive and adverse. Judged by this test, the acts of possession proved on behalf of the Defendants and their tenants fall far short of what would be necessary to extinguish the title of the Appellants. The land was originally undoubtedly waste and continued to be so for many years; the neighbors and the persons employed in certain mills used the abandoned waste as a convenient place for the purposes of nature and the first substantial use made by the Defendants which may in any sense be regarded as a hostile assertion of title on their part and ouster of the Appellants, was within 12 years of this suit. There is nothing to show that beyond 12 years there were any positive acts referable only to the intention of the Defendants to acquire exclusive control of the disputed land; there were no acts which could be regarded as adverse to the existing title; indeed, they were not acts of possession at all; in other words, to use the language of Bramwell, L.J., in Leigh v. Jack 6 Exch. D. 264 at p. 273 (1879), the acts of user were not enough to take the soil out of the Plaintiff and vest it in the Defendant, because in order to defeat a title by dispossessing the owner, acts must be done which are inconsistent with his enjoyment of the soil for purposes for which be intended to use it [see also Wali Ahmad v. Tota Meah ILR 31 Cal. 397 (1903). Pollock and Wright on Possession, page 86, and Lightwood on Possession, page 199]. 11. There is another difficulty, no less for midable in the way of the success of the Defendants. The facts found by the Courts below show conclusively that the possession of the Defendants did not extend over the whole tract now in dispute. 397 (1903). Pollock and Wright on Possession, page 86, and Lightwood on Possession, page 199]. 11. There is another difficulty, no less for midable in the way of the success of the Defendants. The facts found by the Courts below show conclusively that the possession of the Defendants did not extend over the whole tract now in dispute. Whatever acts of user they have proved, if Indeed they be deemed to be acts of possession sufficient to extinguish the title of the Plaintiffs, did not extend over the entire land, Now it was ruled by this Court in the case of Mohini Mohan Roy v. Promoda Nath Roy ILR 24 Cal. 256 (1896), that the doctrine of constructive possession applies only In favour of a rightful owner and must not as a rule be extended in favour of a wrong-doer, whose possession must be confined to lands of which he is actually In possession. This principle is recognised in the oases of Radha Govind Roy v. Inglis 7 C.L.R. 364 (1880), Udit Narain v. Golap Chand ILR 27 Cal 221 (1899), Anandahari v. Secretary of State 3 C.L.J. 316 (331) (1906) and Vithal Das v. Secretary of State ILR 26 Bom, 410 (416) (1901). That this doc-trine is well founded on reason and principle is manifest, for as was observed by Mr. Justice Strong in Humricut v. Peyton 109 U.S. 369 one who enters upon the land of another, though under colour of title, gives no notice to that other of any claim except to the extent of his actual occupancy; the true owner may not know the extent of the defective title asserted against him; and, if while he is in actual possession of part of the land claiming title to the whole mere constructive possession of another of which he has no notice can oust him from that part of which he is not in actual possession, a good title is no better than one which is a mere pretence. Judged by this test also the Defendants have failed to prove that adverse possession on their part has extinguished the title of the Plaintiffs. From every point of view, therefore, it follows that the Plaintiffs are entitled to recover joint possession in the manner claimed. 12. Judged by this test also the Defendants have failed to prove that adverse possession on their part has extinguished the title of the Plaintiffs. From every point of view, therefore, it follows that the Plaintiffs are entitled to recover joint possession in the manner claimed. 12. The learned vakil for the Appellants stated that he does not ask for a decree for ejectment as against the first Defendant, who has been let into occupation of the land by the second and third Defendants who are co-sharers of the Plaintiffs in the property. The Plaintiffs are con-tent to have a decree for declaration of title as against the first Defendant and to be placed in joint possession as landlords along with their co-sharers. 13. The result, therefore, is that this appeal must be allowed and the decree of the learned District Judge reversed. 14. The Plaintiffs will have a decree which will declare their title to a five-sixths share of the lands in dispute and will entitle them to recover joint possession thereof along with the second and third Defendants. They will however not be entitled to eject the first Defendant in execution of this decree. It appears from the proceeding of the Courts below that a portion at any rate of the lands included in the present litigation is in the occupation of other persons who are not parties to this suit and who apparently have encroached upon these lands as part of holding No. 115. It is, therefore, necessary to declare that the Plaintiffs will not be entitled in execution of this decree to disturb the possession of such persons, if any, as are not parties to the present litigation. The Plaintiffs are entitled to their costs in all the Courts.