JUDGMENT Ghose, J. - The Appellant in these two appeals is one Sree Charan Chattopadhya. He is Defendant No. 1 in the suit out of which Second Appeal No. 933 of 1936 has arisen and is Plaintiff in the suit out of which Second Appeal No. 161 of 1937 has arisen. The two appeals have not been consolidated but they have been heard one after the other at the request of the parties as some of the matters in dispute are common and the parties to the Appeal No. 933 of 1936 are also parties to the other appeal. Second Appeal No. 933 of 1936 has arisen out of Title Suit No. 5 of 1935 which was tried in the sixth Court of the Munsif at Barisal, the Plaintiff being one Ganga Charan Chakravarty. He seeks for declaration of his right of way and other incidental reliefs with regard to a strip of land, 431/2 cubits in length and 4 cubits in breadth and forming part of a pathway extending north to south over the homesteads of the parties. The disputed portion passes through plot No. 1482 which is the homestead of the Defendants and connects with a tank to the east which is plot No. 1483 and is admittedly an ejmali tank of the parties. The Plaintiff's case is that the homesteads were partitioned long ago and since then the co-sharers have been in exclusive possession of their respective shares. But the disputed pathway according to the Plaintiff has all along been used by all the co-sharers as a path for going to the ejmali tank and to the cremation ground to the east of it and they have also been going in procession on occasions of marriage, funeral and worship. In 3341 B.E. there was an obstruction on the part of Defendant No. 1 and so the Plaintiff brought the suit for declaration of his right to pass over the disputed pathway with procession, for special damage and in the alternative for a declaration of such right as an undivided owner if it should be found that there was no partition of the homesteads as alleged in the plaint. The suit is contested by the Defendant No. 1 Sree Charan Chattopadhya. His defence is that there has been no partition but that the different parties are in exclusive possession of the homesteads by amicable arrangement. The suit is contested by the Defendant No. 1 Sree Charan Chattopadhya. His defence is that there has been no partition but that the different parties are in exclusive possession of the homesteads by amicable arrangement. He admits that the disputed passage is a pathway and he states that the co-sharers are only allowed to use it by permission and they have no prescriptive right nor any right to take processions. The Munsif held that there was no partition as alleged in the plaint and that there was no right of easement as claimed in the plaint, it not being proved that the pathway had been used as of right for the full statutory period of twenty years. The Munsif further found that there was no easement of necessity because there is another path by which the tank and the cremation ground can be reached, so the Plaintiff cannot get right of easement over the disputed land. As regards the alternative prayer of the Plaintiff, the Munsif has held that the Plaintiff is entitled to succeed as an undivided co-owner who has every right to nee the land which is admittedly a pathway in the way in which other undivided co-owners nee it, provided such use is not inconsistent with the rights of the co-owners nor inconsistent with the nature of possession that the land is capable of. 2. In that view, the Munsif gave a decree as follows:-- The Plaintiff's right to conduct marriage, funeral and Puja processions from or to his house with images and music, over the disputed land and to use the same otherwise as a pathway be declared and there be an injunction restraining the Defendant from obstructing the Plaintiff from or interfering in any way, with his right to use the disputed land in the manner stated above. The injunction is to remain in force till there is a legal partition of the homestead between; the parties and till the rights of the parties over the ejmali lands are adjusted by such partition. The Plaintiff also do recover Rs. 60 as damages from the Defendant. No. 1. 3. This judgment was upheld on appeal by the learned Additional District Judge. The Plaintiff also do recover Rs. 60 as damages from the Defendant. No. 1. 3. This judgment was upheld on appeal by the learned Additional District Judge. It is noteworthy, as the judgment of the learned Additional District Judge shows, that the position taken up before him by the parties was that there had not been any regular partition between them but as a matter of convenience they had been possessing distinct and separate parcels of land within the entire homestead. 4. In those circumstances, the learned Judge came to the same conclusion as the Munsif, holding that no co-sharer had any right to prevent any other co sharer from using the pathway in any way not inconsistent with the user of which the passage was capable and not necessarily interfering with the possession of those separate parcels by the co-sharers through whose parcel the passage might be passing. 5. Against that judgment, Defendant No. 1 Sree Charan Chattopadhya has filed second appeal No. 933 of 1936. 6. Second Appeal No. 161 of 1937 has arisen in this way. Title Suit No. 5 of 1985 was filed on 9th January, 1935 and decreed on 16th September, 1935. Meanwhile on 5th July, 1935, Sree Charan as Plaintiff filed title suit No. 53 of 1935 for partition. The first Court passed a preliminary decree for partition on the 19th May, 1936. That decision was reversed by the lower Appellate Court on 28th September, 1936. The judgment of the latter Court shows that the judgment of the first Court and the lower Appellate Court in Title Suit No. 5 of 1935 were filed and exhibited in the partition suit. 7. It may be added that the partition suit No. 3 of 1935 was brought in the first Court of the Subordinate Judge of Bakargange. It will be seen that the decisions in the two suits which are now appealed against are in some respects inconsistent and have placed the parties in a difficult position. In the suit for right of way, the ultimate decision was given on the finding that there had not been any partition and the decree was made dependent on a partition being effected legally at some future time. In the partition suit, however, the ultimate decision was that partition had already been effected and, therefore no further partition could be decreed. In the partition suit, however, the ultimate decision was that partition had already been effected and, therefore no further partition could be decreed. As mentioned already, Second Appeal No. 161 of 1937 which arises out of the partition suit has also been filed by Sree Charan. It is contended in his behalf that the judgment of the lower Appellate Court is not a proper judgment of reversal. In the partition suit it appears that the contesting parties are divided thus. The Plaintiff Sree Charan and Defendants Nos. 1 to 4 have 6 annas 8 gandas share in the property, while the contesting Defendants Nos. 5 to 13 (of whom Defendant No. 6 Ganga Charan is Plaintiff in the suit for right of way) have 9 annas 12 gandas share. The Plaintiff Sree Charan claims a 3 annas 4 gandas share. His case is that the different share-holders are in possession, of separate plots according to their convenience but without any partition, that some of the Defendants are in possession of more lands than they are entitled to according to their shares, and that the Defendants refused to accede to the Plaintiff's request for partition. The contesting Defendants did not dispute the shares as alleged by the Plaintiff, but they contend that there was a partition more than hundred years ago between the 6 annas and odd share-holders on the one hand and 9 annas odd shareholders on the other; and that the parties are in possession of their respective shares in accordance with that partition. At the same time, the contesting Defendants say that in case the previous partition be not accepted by the Court, the disputed property may be partitioned according to the shares keeping in view the present possession of the parties. The Subordinate Judge points out that there is no document which makes mention of any previous partition and that an old kabuliyat executed by one Rai Charan Seal which is supposed to mention the partition had not been produced. Next; the Subordinate Judge points out that in the right of way Suit No. 5 of 1935, the Defendant No. 6 Ganga Charan in the lower Appellate Court practically gave up the plea of previous partition. The kobalas Exs. Next; the Subordinate Judge points out that in the right of way Suit No. 5 of 1935, the Defendant No. 6 Ganga Charan in the lower Appellate Court practically gave up the plea of previous partition. The kobalas Exs. A and A4 upon which the Defendants relied in support of their case of previous partition do not contain any clear statement of partition; they only mention that the executants are in exclusive possession. Further, these kobalas had not been previously produced. Next, the Subordinate Judge points out that the record-of-rights is consistent with the case of the Plaintiff Sree Charan that the parties are in nijamal possession, that is to say, exclusive possession which does not necessarily imply partition. On the other hand, the Subordinate Judge has found that the possession of the parties is not in accordance with their respective shares and that it was not proved that the land of other Touzis had been mixed up as alleged by the defence. Further, the Subordinate Judge referred to D.W. 1 Defendant No. 7. He is executor to the estate and he says in his evidence that he does not remember whether the fact of partition was mentioned in his application for probate. The judgment of the District Judge which disagrees with the Munsif shows that he did not consider all the circumstances upon which the Subordinate Judge relied. The learned District Judge relied principally upon his view of the way in which the lands had been treated. He did not consider the fact that the kobalas did not mention the partition, nor did he consider that the case made by the Defendant No. 6 Ganga Charan in the right of way suit amounted to an admission as against him. He only pointed out that the Defendants Nos. 7 to 13 were not parties to the suit, but he omitted to consider the weight of the evidence as against the other Defendants Nos. 7 to 13. It seems to me also that the learned Judge relied upon circumstances without considering that they were consistent with the case made by the Plaintiff, namely, that the parties were in separate possession by amicable arrangement. The learned Judge noticed that the parties were not in possession strictly in accordance with their shares, but he thought that this might be due to encroachments, as to which however there is no evidence. The learned Judge noticed that the parties were not in possession strictly in accordance with their shares, but he thought that this might be due to encroachments, as to which however there is no evidence. Nor was any case made of acquiring title by adverse possession, a theory upon which the learned Advocate in this Court for Ganga Charan and others has relied. 8. Lastly it seems to me that the learned Judge failed to attach importance to the fact that the alleged partition of more than hundred years ago was of little value as rebutting the case made by the Plaintiff. 9. Mr. Sen for the Respondents in this appeal has relied on the case of Kulada Prosad Tewary v. Sadhu Charan Tewary 20 C.L.J. 32 (1912). That case may be distinguished by reason of more than one circumstance. In that case there was evidence to show that there was transfer by one member to another member, that there was reclamation of waste land at considerable cost, that there were direct admissions of parties, and that there were suits by landlords. I have already mentioned that there is no case made of adverse possession. On the other hand even taking most of the findings of the lower Appellate Court as they are, I see no reason why the conclusion should not be the same as in the case of Zolfa Bibi v. Ajalladin 21 C.W.N. 229 (1916). There it is held that a partition for convenience of possession by itself cannot stand in the way of a decree for partition so long as it is not found that it was in conformity with the shares of the respective parties. For all these reasons, I think the proper order would be that the judgment and decree of the lower Appellate Court must be reversed and those of the trial Court restored with costs. Parties will bear their own costs in this appeal. 10. I next take up second appeal No. 933 of 1936. For all these reasons, I think the proper order would be that the judgment and decree of the lower Appellate Court must be reversed and those of the trial Court restored with costs. Parties will bear their own costs in this appeal. 10. I next take up second appeal No. 933 of 1936. As mentioned already, the learned Judge below has agreed with the first Court in taking the view that there has not been any partition and that the Plaintiff is entitled to use the pathway as a co-sharer and to use it in any way which is not inconsistent with and does not necessarily interfere with the possession of the separate parcels by the other co-sharers through whose parcels the path passes. At the same time, the learned Judge did not consider whether all kinds of use might not be consistent with the peaceful enjoyment of the respective shares. It is not disputed that the passage in question passes through the homestead which is in the exclusive possession of Sree Charan. Moreover, the first Court has relied on long user of the passage as a pathway, but at the same time has taken the view that such user docs not amount to prescriptive right. Apparently the learned Judge has taken the same view. In any case, the decree has been made dependent on a future decree for partition. Having regard to our judgment in the appeal arising out of the partition suit, it follows that we must set aside the judgment and decree of the lower Appellate Court in S.A. No. 933 of 1936 and remand the case to that Court for rehearing after giving the parties an opportunity to file the final decree for partition in the partition suit. 11. Meanwhile the status quo must be maintained in accordance with the decree already made out of which second appeal No. 933 of 1936 has arisen. The parties will bear their own costs in this Court. Future costs will abide the result. We do not interfere with the order for costs in the Courts below. Patterson, J. I agree.