JUDGMENT - B.M. SAPRE, J.:---This second appeal raises a rather complex question as to the scope of a suit filed under the provisions of Order XXI, Rule 103 of the Code of Civil Procedure. That question is whether in such a suit, even if the plaintiff establishes the right which he claims to the present possession of the property, he cannot succeed of the defendants claims to be a co-owner of the property, though not in possession. I am told that this point has not been exactly covered by any reported decision of this Court and the nearest decision is the one reported in (Bai Ramlaxmi v. The Bank of Baroda)1, 54 Bom.L.R. 667. The question arises in the following circumstances :--- The suit giving rise to this appeal was filed under the provisions of Order XXI, Rule 103 of the Code of Civil Procedure by original plaintiff No. 1 Roshanlal and plaintiff No. 2 Maryambi. Roshanlal died during the pendency of the suit and was represented by plaintiffs Nos. 1(A), and 1(B). The property in suit is one room measuring 23 x 10 in the house bearing Municipal No. 1943 situate within the Municipal limits of Ratnagiri town. House No. 1943 itself is a part of a larger house, the remaining portion of which now bears Municipal No. 1944. Originally, the entire house belonged to one Lal Sagajee Zari, whose genealogy, so far as it is relevant, is as follows : Lal Sagajee Zari | ---------------------------------------------------------------------------------------- | | | | Ahamad Roshan Hasan Adam (Orig. Pltff. | No. 1) | | --------------------------------------- | | Kasam Fatimabi | (Deft. 1). ------------------- | | | Shanmsunnisa Gafur Havabi (Deft. 3). = Ahamad (Deft. 2). Lal Sagajee Zari gifted the house in question to his four sons, Ahamad, Roshan, Hasan and Adam on 4th May, 1914. The four sons became the owners of the house, each possessing ¼th share. Ahmad separated from his three brothers and his ¼th share was partitioned. That separate portion came to be numbered as house No. 1944. The remaining ¾th share of Roshan, Hasan and Adam came to be numbered as house No. 1943. According to the original plaintiff No. 1 Roshan, his brother Hasan executed a deed of arrangement on 20th January, 1941 whereunder he gave his ¼th share to his grandson Gafur. That separate portion came to be numbered as house No. 1944. The remaining ¾th share of Roshan, Hasan and Adam came to be numbered as house No. 1943. According to the original plaintiff No. 1 Roshan, his brother Hasan executed a deed of arrangement on 20th January, 1941 whereunder he gave his ¼th share to his grandson Gafur. Subsequently, Kasam, as guardian of Gafur, sold the ¼th share of Gafur to plaintiff No. 1 Roshan on 16th March, 1944. The ¼th share of Adam was also sold by the heirs of Adam to plaintiff No. 1 Roshan on 22nd December, 1952. Roshan thus became the full owner of house No. 1943. Roshan sold house No. 1943 to plaintiff No. 2 Maryambi on 1st November, 1962. It is for this reason that she had been joined with plaintiffs No. 1 in the suit. The case of the plaintiffs further was that house No. 1943 was being managed by the power of Attorney of Roshan by name Satar Abdul Gafoor Khan. In the room in suit, Roshan had kept one tenant by name Rajaram Laxman Nalavade, who was in possession of the room up to 22nd June, 1961. After Nalavade left the room, defendants Nos. 2 and 3 unlawfully took possession of the room and started living there. Roshan, therefore, filed Civil Suit No. 48 of 1961 against defendants Nos. 2 and 3 for possession of the room. A compromise was arrived at in that suit between Roshan and defendants No. 2 and 3. Under the comprise, defendants Nos. 2 and 3 agreed to deliver possession of the room to Roshan by 22nd August, 1961. As defendants No. 2 and 3 failed to deliver possession of the room to Roshan, he filed Darkhast No. 24 of 1962 against them to obtain possession. A warrant was issued for delivery of possession. At that time, defendant No. 1 obstructed delivery of possession to Roshan. Roshan, therefore, field Miscellaneous Application No. 16 of 1962 under Order XXI, Rule 97 of the Code of Civil Procedure, complaining of the obstruction. The Court dismissed the application under Rule 99 of Order XXI. The two plaintiffs thereafter filed the present suit under Rule 103 of Order XXI. The case of defendant No. 1 was that she is the daughter of Hasan and, in that capacity, she has got a share in the property left by Hasan. The Court dismissed the application under Rule 99 of Order XXI. The two plaintiffs thereafter filed the present suit under Rule 103 of Order XXI. The case of defendant No. 1 was that she is the daughter of Hasan and, in that capacity, she has got a share in the property left by Hasan. She denied that the deed of arrangement dated 20th January 1941 conveyed any title to Gafur over the ¼th share of Hasan. She thus claimed to be a co-owner of house No. 1943, having a share in the ¼th share of Hasan in the house. According to her, she was in possession of the room in question through defendants 2 and 3. Defendant No. 3 is her daughter and defendants 2 is her son-in-law. They were not getting any place to live at Ratnagiri and hence she had given the suit room to them for their residence in 1961. The trial Court held that defendant No. 1 , as the daughter of Hasan, has got some share in the entire house bearing Municipal No. 1943 under the Mahomedan Law. That share of defendant No. 1 was not lost by plaintiff No. 1 Roshan purporting to purchase the ¼th share of Gafur on 16th March, 1944 on the assumption that the ¼th share of Hasan had come to Gafur under the deed of arrangement dated 20th January, 1941. The trial Court, however, held that defendant No. 1 was in possession of the suit room by virtue of her having a share in house No. 1943 as the daughter of Hasan. The trial Court further held that defendants 2 and 3 were not introduced in the suit room by defendant No. 1 and held that they had unlawfully entered into possession of the suit room. The trial Court thus held that the plaintiffs did not have title to the entire house bearing Municipal No. 1943, which included the suit room, because defendant No. 1 appeared to have some share in the entire house under the Mohamedan Law. The trial Court, however, held that the plaintiffs were entitled to recover possession of the suit room, as they had been forcibly dispossed. The reason given by the trial Court were these :--- ".....apart from the failure on the part of plaintiffs Nos. The trial Court, however, held that the plaintiffs were entitled to recover possession of the suit room, as they had been forcibly dispossed. The reason given by the trial Court were these :--- ".....apart from the failure on the part of plaintiffs Nos. 1(A) and 1(B) to prove their title and ownership over the suit room, the fact remains that the deceased plaintiff No. 1 by name Roshanlal took possession of the suit room from Kasam Hasan in the year 1953 as per Exh. 74 and that thereafter the deceased father of Plaintiff No. 1 (A) was giving the suit room on rent to tenants through the witness Sattar Gafur, who was looking after the entire suit house bearing Municipal No. 1943 on his behalf. It is also in evidence that Defendants Nos. 2 and 3 entered into the suit room forcibly and that thereafter the deceased father of plaintiff No. 1(A) by filing Civil Suit No. 48 of 1961 obtained a decree against them for possession. Further, the admission given by defendant No. 1 in her deposition at Exh. 88 goes to show that she gave obstruction to the delivery of possession of the suit room to the deceased plaintiff No. 1 at the instance of defendants Nos. 2 and 3. It is further stated by defendant No. 1 in her deposition at Exh. 86 that she has kept her son and daughter-in-law in suit room. It is, therefore, clear that defendant No. 1 has taken possession of the suit room by force recently. It cannot be questioned that she has a share under the Mohamedan Law in the entire house bearing Municipal No. 1943. This fact has been discussed by me at length in my discussion below Issue No. 1. However, from my discussion below Issue No. 3, it will be seen that in spite of the fact that she has a share under the Mohamedan Law, she was never in possession of the suit room in lieu of her share. Therefore, the question which arises for consideration is whether she was entitled to take possession of the suit room by fore. In my opinion, the proper and legal remedy for her was to file a suit for partition and possession of her share in the entire house bearing Municipal No. 1943. Therefore, the question which arises for consideration is whether she was entitled to take possession of the suit room by fore. In my opinion, the proper and legal remedy for her was to file a suit for partition and possession of her share in the entire house bearing Municipal No. 1943. She was not legally justified in taking possession of the suit room unlawfully after the deceased Plaintiff No. 1 obtained a decree against her son-in-law and against her daughter in Civil Suit No. 48 of 1961. As defendant No. 1 took possession of the suit room by force and unlawfully, I am of the opinion that Plaintiffs are entitled to get possession of the suit room from the defendants. After defendant No. 1 hands over possession of the suit room to the plaintiffs, She may file a suit claiming her share in the entire house bearing Municipal No. 1943." The trial Court accordingly passed a decree in favour of the plaintiffs for possession of the suit room. Against that decree, defendant No. 1 preferred an appeal to the District Court. In the District Court, it was not disputed on behalf of the plaintiffs that defendant No. 1 has some share in the entire house bearing Municipal No. 1943. The lower Appellate Court also reversed the finding of the trial Court in regard to the possession of defendant No. 1 over the suit room. Apparently, defendant No. 1 was not herself in actual or physical possession of the room. She was claiming to be in possession through defendants 2 and 3. Her case was that she had given the suit room to defendants 2 and 3 for their residence. Strangely, the lower Appellate Court did not go into the question whether defendants 2 and 3 had entered the suit room in the year 1961 through defendant No. 1 and yet, for practically no reason, it recorded a finding that defendant No. 1 was in possession of the suit room. Proceeding on the basis that defendant No. 1 was in possession of the suit room and on the basis of the further admitted fact that defendant No. 1 was a co-owner of house No. 1943, the lower Appellate Court held that the plaintiffs cannot claim exclusive possession over the suit room, because they have no exclusive title to that room. Proceeding on the basis that defendant No. 1 was in possession of the suit room and on the basis of the further admitted fact that defendant No. 1 was a co-owner of house No. 1943, the lower Appellate Court held that the plaintiffs cannot claim exclusive possession over the suit room, because they have no exclusive title to that room. According to the lower Appellate Court, the proper remedy for the plaintiffs was to file a suit for partition of the entire house No. 1943. The lower Appellate Court, therefore, set aside the decree of the trial Court and dismissed the plaintiffs suit for possession of the suit room. For the reasons which I will indicate later, the first important point to be considered in this appeal is whether, on the date of obstruction, defendant No. 1 was in possession of the suit room. The trial Court, in paragraphs 29 to 32 of its judgment, after a careful review of the entire evidence and for cogent reasons, had come to the conclusion that defendant No. 1 was never in possession of the suit room. The trial Court had also held that defendants 2 and 3 were not introduced in the room by defendant No. 1 and that they had, of their own accord, unlawfully entered into possession of the room. It was the case of defendant No. 1 that the suit room was in her possession for the last 11 to 12 years. She had also stated that before she came to be in possession of the room, her brother Kasam was residing in the room. The trial Court has pointed out that the receipt of possession at Exh. 74 in Darkhast No. 104 of 1952 shows that original plaintiff No. 1 Roshanlal had filed a suit against Kasam and in execution of the decree in that suit, he had taken possession of the room on 10th November 1953. The trial Court found the case of defendant No. 1, that she had entered into possession of the room after Kasam had vacated it, unworthy of credency. This was for the reason that defendant No. 1 in her cross-examination had stated that she was married 40 years ago and that since the time of her marriage, she was living with her husband in a house which is at some distance from the house bearing Municipal No. 1943. This was for the reason that defendant No. 1 in her cross-examination had stated that she was married 40 years ago and that since the time of her marriage, she was living with her husband in a house which is at some distance from the house bearing Municipal No. 1943. Defendant No. 1 then came out with another case that she had given the suit room to one Umar Zari for a few days. This Umar Zari was not examined by defendant No. 1 . It was then the case of defendant No. 1 that after Umar Zari left the suit room, she had given it to her daughter, defendant No. 3, for her residence and defendants 2 and 3 were living in the room. But the trial Court has pointed out that when plaintiff No. 1 Roshan filed a suit against defendants 2 and 3 for possession of the suit room, alleging that they had entered into the suit room by force, defendants 2 and 3 had not come forward with a defence that they were not unlawfully occupying the suit room, but defendant No. 1 had given the suit room to them for their residence. On the other hand, defendants 2 and 3 entered into a compromise with plaintiff No. 1 Roshan and agreed to vacate the suit room by 22nd August, 1961. This conduct of defendants 2 and 3 was taken into account by the trial Court in negativing the case of defendant No. 1 that defendants 2 and 3 were occupying the suit room on her behalf. The trial Court has then referred to the admission of defendant No. l in her deposition that when plaintiff No. 1 was executing his decree against defendants 2 and 3, they came to her requesting her to come and cause obstruction to the delivery of possession as the warrant of possession issued by the Court was going to be executed and if this was done, they would be thrown out on the street. It was thereafter that defendant No. 1 had caused the obstruction to the delivery of possession at the instance of defendants 2 and 3. As against this, evidence was adduced by plaintiff No. 1 to show that he had obtained possession of the suit room from Kasam in the year 1953 and thereafter, he was in possession of the room through tenants. As against this, evidence was adduced by plaintiff No. 1 to show that he had obtained possession of the suit room from Kasam in the year 1953 and thereafter, he was in possession of the room through tenants. Plaintiff No. 1s agent Satar Gafoor was examined as a witness. He stated that he was living in a portion of the suit house and he was keeping tenants in the suit room. A tenant by name Nalavade was occupying the suit room till 22nd June, 1961. Plaintiff No. 1 also examined Nalavade, who supported Satar Gafoor on the point. All this evidence was carefully considered by the trial Court. The trial Court had clearly recorded a finding that it was defendants 2 and 3 who were in actual possession of the room and defendant No. 1 was not occupying it. The trial Court had further observed that it was only when the warrant of possession was being xecuted that defendants 2 and 3 had gone to defendant No. 1 requesting her to offer resistance to the delivery of possession and it was at that time that defendant No. 1 came to the suit room and obstructed delivery of possession. I was taken through the whole judgment of the lower Appellate Court. But I find that absolutely no reasons have been given by the lower Appellate Court for recording a finding that defendant No. 1 was in possession of the suit room. It has not referred to any evidence which was carefully considered by the trial Court. It had not tried to demolish any of the reasons given by the trial Court for reaching the conclusion that defendant No. 1 was not in possession of the suit room or that defendants 2 and 3 had not entered the suit room through defendant No. 1 and were not in possession of the room on her behalf. On the other hand, the lower Appellate Court simply stated :--- "... it is not necessary to consider as to whether defendants Nos. On the other hand, the lower Appellate Court simply stated :--- "... it is not necessary to consider as to whether defendants Nos. 2 and 3 entered the suit room through Defendant No. 1 in 1961." Without considering the evidence on record and without trying to demolish any of the reason given by the trial Court for its conclusion that defendant No. 1 was not in possession of the suit room, the lower Appellate Court made a bald statement in its judgment to the following effect :--- "The fact remains that at the time when the Bailiff went to deliver possession it was defendant No. 1 who was in possession of the property." If all that the lower Appellate Court meant by the above statement is that defendant No. 1 was present when the Bailiff was trying to execute the warrant for delivery of possession and she caused obstruction to the delivery of possession, then it is a correct statement. But that cannot mean that defendant No. 1 was in possession of the suit room and she was trying to defend that possession on the ground that she had a right to remain in possession. The lower Appellate Court must, therefore, be held either to have recorded no finding if defendant No. 1 was in possession of the suit room, or if it had recorded that finding, that would be a perverse finding because it was a finding, contrary to the one recorded by the trial Court, without discussing any evidence without giving any reasons and without trying to demolish the several reasons given by the trial Court for its finding. I will, therefore, proceed on the basis that the only legal finding before me is that defendant No. 1 was not in possession of the suit room. It is in this background that the next important question that arises for determination in this appeal has to be considered, viz., whether the plaintiffs in a suit under Order XXI, Rule 103 of the Code of Civil Procedure on their establishing their right to the present possession of the suit room are liable to be non-suited on the ground that defendant No. 1, who though not in possession of the suit room, is a co-owner of house No. 1943 of which the suit room forms a portion. The lower Appellate Court has observed in paragraph 10 of its judgment that the present suit cannot be said to be principally under Order XXI, Rule 103 of the Code of Civil Procedure, because the plaint, makes a specific averment about the plaintiffs title, including title by adverse possession. The plaintiffs had also claimed declaration of ownership. It was thus a combined suit based upon title and right to possession. The lower Appellate Court has then referred to a decision of this Court in Lakshman v. Dattatraya, for the proposition that the suit contemplated by Rule 103 is not confined to a suit for possession and it may be brought either on account of the plaintiffs right to possession or on account of his title. The lower Appellate Court has observed that the establishment of title sought by the plaintiffs in the trial Court would be an indication that the suit was on title. The allegations in paragraph 2 of the plaint will, however, show that the suit of the plaintiffs is only under Order XXI, Rule 103 of the Code of Civil Procedure and is not a suit based on title. It has been alleged in paragraph 2 of the plaint that the suit room was in possession of the tenant of plaintiff No. 1 till 22nd June, 1961. On his vacating the suit room, defendants 2 and 3 unlawfully entered the suit room. Plaintiff No. 1, therefore, brought Suit No. 48 of 1961 against defendants 2 and 3 which ended in a compromise. Defendants 2 and 3 agreed to vacate the suit room by 22nd August, 1961, but they failed to vacate. Plaintiff No. 2, therefore, filed Darkhast No. 24 of 1962 against defendants 2 and 3 for executing the decree for possession. The Bailiff of the Court went to the room with a warrant for delivery of possession. At that time, defendants 2 and 3 put forward defendant No. 1 and she cause obstruction to the delivery of possession. Plaintiff No. 1 filed an application in the Court, which was Miscellaneous Application No. 16 of 1962 for removal of the obstruction. That application was dismissed. Hence, the plaintiffs had brought the present suit. At that time, defendants 2 and 3 put forward defendant No. 1 and she cause obstruction to the delivery of possession. Plaintiff No. 1 filed an application in the Court, which was Miscellaneous Application No. 16 of 1962 for removal of the obstruction. That application was dismissed. Hence, the plaintiffs had brought the present suit. The scope of a suit under Order XXI, Rule 103 of the Code of Civil Procedure was considered by a Division Bench of this Court in Bai Ramlaxmi v. The Bank of Baroda, At page 672, the Court observed as follows :--- "We may at this stage as well consider what is the scope of the suit under Order XXI, Rule 103 of the Civil Procedure Code. Order XXI, Rule 103, of the Code, provides that : "Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive . The suit is evidently for the purpose of establishing the right which the plaintiff claims to the present possession of the property. This right may be established by the plaintiff in any manner whatever available to him. He may do it by establishing that under the terms of a deed of partition he is entitled to the possession of the property as the sole owner thereof. He may also establish the claim to the present possession of the property in his right as a tenant-in-common with the judgment-debtor. He may establish the right to the present possession of the property by any other vestige of title which he may have acquired in that property. The question is what is the plaintiffs claim to the present possession of the property, not whether he is the sole owner of the property." The case of plaintiff No. 1 was that he was in possession of the suit room, which possession he got through Court against Kasam. Thereafter he was in possession through a tenant. After the tenant vacated the room defendants 2 and 3 had unlawfully entered the suit room. Plaintiff No. 1 had filed a suit against defendants 2 and 3 for possession and this claim was decreed, defendants Nos. Thereafter he was in possession through a tenant. After the tenant vacated the room defendants 2 and 3 had unlawfully entered the suit room. Plaintiff No. 1 had filed a suit against defendants 2 and 3 for possession and this claim was decreed, defendants Nos. 2 and 3 agreeing to vacate the suit room by 22nd August, 1961. This was the right which plaintiff No. 1 was claiming to the present possession of the suit room. He may have stated in the plaint that he has also a title to the suit room, because it forms part of house No. 1943, and that he has a title to the entire house No. 1943. That does not change the character of the suit which the plaintiffs had filed under Order XXI, Rule 103 of the Code of Civil Procedure. In such a suit, all that the plaintiffs had to establish was their right to the present possession of the property. The case of (Lakshman v. Dattatraya)2, A.I.R. 1929 Bom. 379. referred to by the lower Appellate Court tin paragraph 10 of its judgment, also lays down:- "The suit contemplated by Rule 103, Order 21 is not confined, in our opinion, to a suit for possession of the property. It is a suit to establish a right which the plaintiff claims to the present possession of the property. And this right may be established either on account of his right to possession or on account of his title." A suit under Order XXI, Rule 103 is, therefore, not a general suit on title, though the plaintiff may put forward his title to establish his right to the present possession of the property. In this view of the matter, the decision in (Nana v. Appa)3, I.L.R. 20 Bom. 627, relied upon by the lower Appellate Court, is irrelevant. That was a suit not under Order XXI, Rule 103, but was a general suit on title. The plaintiff sued for possession of certain land. The trial Court held that the land was the joint property of the plaintiff and the defendant. The trial Court, at the same time, found that the plaintiff had been in exclusive possession of the land. The trial Court, therefore, decreed the claim of the plaintiff for possession of the land. The plaintiff sued for possession of certain land. The trial Court held that the land was the joint property of the plaintiff and the defendant. The trial Court, at the same time, found that the plaintiff had been in exclusive possession of the land. The trial Court, therefore, decreed the claim of the plaintiff for possession of the land. On an appeal to the High Court, it was held that exclusive possession could not be awarded unless exclusive title was proved. As the land was the joint property of the plaintiff and the defendant, the High Court passed a decree for joint possession. With respect, that would be the correct position of law when a suit for possession was filed on general title and when the suit is not under Order XXI, Rule 103 of the Code of Civil Procedure. The position, therefore, is that the plaintiffs and defendant No. 1 are co-owners so far as house No. 1943 is concerned. The room in question forms part of the house No. 1943 defendant No. 1 was not in possession of the room. Plaintiff No. 1 was in possession of the room through a tenant. When that tenant vacated, defendants 2 and 3 wrongfully entered into possession of the room and remained in possession. Plaintiff No. 1 filed a suit against defendants 2 and 3 for possession and obtained a decree against them. Plaintiff No. 1 had a right to remain in possession of the room on these facts. Defendant No. 1 was not in possession. Defendants 2 and 3 were not in possession on behalf of defendant No. 1. Defendant No. 1 may be co-owner of the house, but she was not in possession of the room. The position would have been different had she been in possession of the room, either herself or through defendants 2 and 3. Mr. Walawalkar has referred me to a Full Bench decision of Travancore-Cochin High Court in (Kesavan v. Neelkantan)4, A.I.R. 1955 Travancore Cochin 225 F.B., where a view has been expressed that possession within the meaning of Rules 97 to 100 of Order XXI of the Code of Civil Procedure in Khas possession. With respect, I doubt whether that would be a correct position in law. With respect, I doubt whether that would be a correct position in law. In my view, even if it had been proved that defendants 2 and 3 were in possession of the suit room on behalf of defendant No. 1, I would have been inclined to hold that defendant No. 1 was in possession of the suit room for the purpose of Rules 97, 99 and 103. But it has been held that defendant No. 1 was not in possession of the suit room even through defendants 2 and 3. Had defendant No. 1 been in possession of the suit room, she would have been justified in resisting delivery of possession, because, as a co-owner of house No. 1943, she had a right to present possession of the house. Of course, as a co-owner of house No. 1943, she has a right to sue the plaintiffs for partition of her share in the house and to have that share separated. The lower Appellate Court has referred to the facts in Bai Ramlaxmi v. The Bank of Baroda and has observed that the possession of defendant No. 1 here is on par with the case of Bai Ramlaxmi in the abovementioned decision. The facts which have been relied upon by the lower Appellate Court from that decision, in its own words, are :--- "The said Ramlaxmi was a widow in a joint Hindu family. Some coparceners executed an equitable mortgage of the family property in favour of the Bank and in execution of the decree obtained by the Bank on the strength of the mortgage, the property in dispute was sold. It was purchased by the Bank. The Bank filed an application for possession. Ramlaxmi obstructed the delivery of possession and contended that there was partition between coparceners and that the house in question had fallen to the share of the branch to which she belonged. Her case was that under these circumstances the auction sale would not convey any title to the Bank. The trial Judge found that the document evidencing the partition was inadmissible for want of registration and hence the Plaintiff was not able to prove her case. Her case was that under these circumstances the auction sale would not convey any title to the Bank. The trial Judge found that the document evidencing the partition was inadmissible for want of registration and hence the Plaintiff was not able to prove her case. Their Lordships accepted this finding about the inadmissibility of the document but held that the said document would be a proof that there was a severance in estate and as such partition of the family, though the partition of the property by metes and bounds cannot be proved. With this finding Their Lordships held that the Plaintiff was one of the tenants-in-common having a share in the suit property and hence she was entitled to retain possession of that property." There is a material difference between the facts of the abovementioned case and the case before me. In the instant case, defendants 2 and 3 were not in possession though defendant No. 1. Defendant No. 1 was not in possession of the suit room. Had defendant No. 1 been in possession, then a suit filed by plaintiff No. 1 against defendants Nos. 2 and 3 without joining defendant No. 1 would not have bound defendant No. 1 and she could resist the present suit by contending that she had a right to remain in possession of the property, as she was already in possession and not having been joined in the suit the decree passed in that suit against defts, 2 and 3 was not binding on her and as a co-owner of house No. 1943, she was entitled to remain in possession of the room which formed part of house No. 1943 In my view, the whole difference in the position arises because, although defendant No. 1 is a co-owner of house No. 1943, she was not in possession of the suit room when plaintiff No. 1 filed a suit against defendants Nos. 2 and 3 and obtained a decree against them and he was trying to get possession of the room, which he had earlier lost, by executing the decree. The relief of possession of the suit room could not be denied to the plaintiffs simply on the ground that defendant No. 1 is a co-owner of house No. 1943. Her remedy is to file a suit for partition of her share in house No. 1943. The relief of possession of the suit room could not be denied to the plaintiffs simply on the ground that defendant No. 1 is a co-owner of house No. 1943. Her remedy is to file a suit for partition of her share in house No. 1943. The result, therefore, is that the appeal is allowed. The decree of the lower Appellate Court is set aside and that of the trial Court is restored. As defendant No. 1 appears to have a share in house No. 1943, it will be open to her to file a suit for partition and separate possession of her share in the house. The decree shall not be executed for a period of two months from to day to enable defendant No. 1 to file a suit for partition, if she so chooses. The respondents-defendants shall pay the costs of the plaintiffs-appellants and bear their own costs throughout. -----