BIRBAL SINGH Vs. CHANDRA DEO SINGH

JUDGEMENT

(1.) This second appeal arises out of the judgment dated 84.1976 in Civil Appeal No. 301 of 1973 passed by the Additional Civil Judge, Azamgarh.

(2.) According to Sri A.N. Bhargava learned Counsel for the Defendant Appellant the Trial Court had dismissed the suit of the Plaintiff Respondent on the ground that partition has taken place and the constructions in question have fallen into the share of the subsequent purchaser of co-sharer. He states that in an appeal filed by the Plaintiff Respondent the appellate Court has set aside the judgment of the Trial Court and allowed the appeal by holding that no partition had taken place between the co-sharers and the Defendant No. 1 being a subsequent purchaser from one of the co-sharers cannot raise any constructions on the joint land and therefore the same requires to be demolished.

(3.) According to Sri A.N. Bhargava learned Counsel for the Defendant Appellant even if the finding that no partition had taken place amongst the co-sharers then the Defendant Appellant being a purchaser from one of the co-sharer having raised constructions over the plot in question it could not be ordered to be demolished because it would come within the hoch-poch of the joint property and each of the share holders could claim to have a share in such construction. He states that the decree of demolition is therefore liable to be set aside. He has placed reliance on a Full Bench decision of this Court in the case of Chhedi Lal and Anr. v. Chhotey Lal, 1951 AIR(All) 199, in support of his submission.