(1.) This is a plaintiffs further appeal against the lower appeal Courts affirming decree whereby their claim for damages amounting to Rs. 4,000 was dismissed.

(2.) The material facts, which are no longer in dispute, are these. In Civil Suit No. 1A of 1937, the Additional District Judge, Khandwa, passed on 31 July 1937 a decree in terms of compromise by which Dattatraya (plaintiff 1) and his two brothers, Sadashiva and Ganpatrao (defendant 2), divided their joint family property in which each had a third share. They, however, kept one item of the property, namely, a ginning factory called Trimbakrao Ramrao Ginning Factory, undivided. By a subsequent arrangement arrived at amongst them, each co- owner agreed to run the factory for one year in every 3 years by rotation. According to this arrangement, the plaintiff 1 had his terms for running the factory in the years 1953-54, 1956-57 and 1959-60. Subsequently, Sadashivarao sold his one-third share in the factory to Smt. Annusayabai (defendant 1), who is the wife of Ganpatrao (defendant 2). Still later, by a deed dated 4 March 1958, the plaintiffs 2 to 4 purchased the one-third share of Dattatraya (plaintiff 1). Claiming to have stepped into the shares of the plaintiff 1, the plaintiffs 2 to 4 demanded possession of the factory for running it in the year 1959- 60. The defendants did not deliver possession of the factory for that purpose and, in fact, refused so to do.

(3.) The plaintiffs 2 to 4 claimed Rs. 4,000 as damages mainly on the ground that they were, under the arrangement made amongst the plaintiff 1 and his two brothers, entitled to run the factory in the year 1959-60 but they were wrongfully not allowed by the defendants to do so. In the alternative, they sought to support that claim on the basis that the plaintiffs were entitled to one-third share of profits from 1 September 1957 to 31 August 1960.

(4.) The defendants resisted the claim mainly on the ground that the agreement to run the factory by rotation was a private arrangement between the plaintiff 1 and the defendants and the plaintiffs 2 to 4 had neither any right to run the factory in accordance with that arrangement nor could they claim any damages for not being allowed to run it in that way.

(5.) Both the Courts below dismissed the suit on the view that the plaintiffs 2 to 4 were disentitled to take advantage of the agreement to run the factory by rotation made amongst the plaintiff 1 and his two brothers.

(6.) The only question for consideration in this appeal is whether the view taken by the Courts below about the agreement to run the factory by rotation is correct. In view of the partition decree, the three brothers held the factory as co-owners. This position is further clear from paragraph 3 of the plaint and paragraph 3 of the written statement and is also not disputed.,,.,..That being so, the principle that the purchaser of an undivided share in a specific coparcenary property is not entitled to joint possession has no application to this case.

(7.) It is well settled that co-owners of an undivided property, who are not living in a state of jointness, may take up exclusive physical possession and enjoyment of different parts of property without any definition or severance of interests as would amount to partition. Such an arrangement, if come to by common consensus, will not be interfered with at the instance of any one co- owner during the tenure in common. A purchaser of an undivided share is bound by all arrangements which his vendor may have made with his co-owners for the common enjoyment of the undivided estate: Jagannath v. Ramprasad, 14 NLR 101. In that case, Stanyan A. J. C. observed at page 104 as follows:

"Therefore, it is the invariable practice for co-owners who arc not living in a state of absolute jointness as one family, to take up exclusive possession and enjoyment of different parcels of the joint or common property without any such definition or severance of interests as would amount to partition. When this has been done, the Courts will not interfere with the arrangement at the instance of any one co-owner during the tenure in common, and will only do so on partition so far as may be necessary to make an equitable division of the property. This principle is well established in a voluminous cursus curiae. For the purposes of this case, it is only necessary to quote the decision of their Lordships of the Privy Council in Watson v. Ramchand, ILR 19 Cal 19 at p. 21, and of the Indian High Courts concerned in Madan Mohun Shaha v. Rajah Ali, ILR 28 Cal 223 [LQ/CalHC/1900/120] ;Jagar Nath Singh v. Jai Nath Singh, ILR 27 All 88 and Syed Ali v. Najab All, 11 CWN 143"

This view was approved in Gopal v. Shamrao, 1941 NLJ 56=AIR 1941 Nag 21=ILR 1941 Nag 54(FB). A similar view was also taken in Jalaluddin Khan v. Rampal, AIR 1927 Oudh 467 and Umrao Singh v. Khacheru Singh, ILR 1939 All 507(FB). In the instant case,the arrangement, instead of providing for simultaneous enjoyment of parcels of common property, postulates successive enjoyment of such property by the co-owners by rotation. There is, in principle, nothing to distinguish one from the other in so far as each provides for a mode of enjoyment of common property. It is equally clear that either arrangement would be binding on the co-owners with such consequence that a purchaser of an undivided share of one of these co-owners would step into his shoes. He would not only be bound by the arrangement precisely in the same manner as his vendor but would also be entitled to take advantage of it for like enjoyment of the common property.

(8.) The lower appeal Court has mentioned that there was a private arrangement amongst Dattatraya and his brothers for enjoyment of common property and; therefore, it had no binding effect. The arrangement was indeed a private one in the sense that it related to private property but, as shown, the fact did not affect its binding character. It is hardly necessary to point out that there is no plea, and no evidence to show, that, by express agreement, the arrangement was limited in any sense or that it could be terminated at the option of any one of the parties.

(9.) It is no doubt true that, by a notice Ex. D-3 dated 17 October 1957, Garrpatrao (Defendant 2) purported to terminate the arrangement for running the factory by rotation but. as indicated earlier, that could not be done by him unilaterally. It may also be that, by the sale deed Ex. P-5 dated 4 March 1958, the benefit of this arrangement was not expressly assigned to the plaintiffs 2 to 4 but that was not necessary because, in that respect, the transferees have stepped into the shoes of their vendor and are, in the ab sense of anything to the contrary in the sale deed, entitled to the benefit of the arrangement.

(10.) In this view, the appeal must succeed. Even so, since the Courts below have not determined the damages, the case must go for that purpose.

(11.) The appeal succeeds and is allowed. The decrees passed by the two Courts below are set aside and the case is remanded to the Court of first instance with a direction to re-admit the suit under its original number and then proceed to determine it with advertence to the observations made in the foregoing paragraphs. The evidence recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Costs here and in the Courts below shall abide the ultimate result. Hearing fee according to schedule. Appeal allowed.