MAKHAN LAL Vs. SUJAN

JUDGEMENT

(1.) This is a second appeal by the plaintiffs whose suit was dismissed by both the lower Courts. The plaintiffs are cosharers in Tan agricultural village and they sued for the demolition of a nohra or cattle shed alleged in the plaint to have been for two months under construction by the defendants in front of another nohra built about a year before the plaint. The plaint also claimed damages for their share of a farash tree alleged to have been cut by the defendants. The defence was that the nohra was 50 or 60 years old and that the defendants were also cosharers in the village and the abadi had not been partitioned. The Munsif found that the defendants were also cosharers in the khewat numbers in which the plots in dispute lie, so the parties are joint owners of the land in question. He made a local inspection and found: I am further inclined to think that the entire building is not a new one. There are two apartments in it. The inner one appeared to me at the time of inspection as an old building of some years standing. It seems to have been built after the partition of 1915 and possibly it is not more than 12 years, old. The outer portion which consists of the gateway in the middle and the two rooms one on each side is a fairly recent building and does not scorn to be more than a few months old....The patwari who is a plaintiff's witness had to concede that the enclosure had been made move than five years ago. The lower Court has adopted the findings of the Munsif and has adopted his view of the law which was stated as follows: One of the several joint owners is not entitled to erect a building on the joint property although it causes no direct loss to the other co- sharers, but whore one of the cosharers has enjoyed peaceable exclusive possession over a portion of the joint land he cannot be ousted and the remedy open to the other cosharers is to sue for partition , Ram Harakh Pande V/s. Chunni Singh.

(2.) The Munsif decreed damages for the tree so that is not in appeal. The lower appellate Court found: from the evidence it appears that the respondent's enclosure is old and it is within that enclosure that the new constructions have been made. This being so there are no good reasons for demolishing the buildings, A cosharor is fully entitled to build within his compound and so long as he does not encroach upon any new site ho would not be disturbed.

(3.) The second ground of appeal argues that the constructions should be demolished as there is no finding that they are over 12 years old; the fifth ground argues that even if the entire house was not new the extensions were liable to be demolished and the sixth ground argues that a cosharer has, no right to change the use of the land in his exclusive possession. Argument was not made on other grounds. learned Counsel for appellant first referred to Shadi V/s. Anup Singh (1890) 12 All 436. In that case: The suit was brought within three or four days after the defendant had commenced to erect his kachcha buildings. An interim injunction was granted in the case.