RAM NARESH SINGH Vs. MUNESHWAR PRASAD TEWARI

JUDGEMENT

(1.) This is a plaintiffs appeal arid arises out of a suit brought by them against the defendant for demolition of a building alleged to have been constructed by the defendant respondent on the joint land. The parties are cosharers and it is alleged by the plaintiffs that the defendant had recently constructed a building which he had no right to construct on the joint land. The defendant contended that he had purchased the zamindari share and the house of Durga, Pathak from his heir Padarath Pathak in 1918 and has since been in possession of the same and that he has built his house on the site of the cattle house and courtyard of Durga Pathak. The defendant also contended that he started his constructions in 1922 and has spent about Rs. 17,000 and that he had been in exclusive possession of the land in dispute since 1918. He further contended that in 1927, suit No. 35 of 1927 was brought by Achal Bahadur, own brother of plaintiff Ram Naresh Singh, a member of the joint family of the plaintiffs in respect of the constructions in dispute which failed.

(2.) The trial Court decreed the suit, but on appeal the learned Additional Subordinate Judge dismissed the suit. He found that the constructions commenced, as found by the trial Court, in 1925. The plaintiffs had all along knowledge of the constructions. In fact a suit (suit No. 35 of 1927) referred to above was brought by Achal Bahadur a member of the plaintiffs joint family to get the constructions demolished. After the withdrawal of the suit by Achal Bahadur no other member of the family of Achal Bahadur including the plaintiffs did anything till February 1931 when the present suit was brought. The respondent had spent Rs. 4,000 on the constructions till the suit of 1927 was brought. Futher constructions have been made since then and as stated by the learned Additional Subordinate Judge the constructions must have cost a substantial sum. The house stands substantially constructed. The outside walls are of pucca bricks and there arc as many as 7 or 9 rooms. The roof is tiled. The learned Additional Subordinate Judge states further that apart from finishing touches the main building stands already constructed according to the statement of the plaintiff 1 himself and is in the occupation of the defendant respondent. The area covered by the building is only 70 by 67 feet. The learned Judge observed: It is obvious therefore that the plaintiffs respondents have been guilty of laches for the suit has been unreasonably delayed. The prayer for demolition if allowed would be too severe.

(3.) It will thus appear that the suit has been brought six years after the constructions were started and when the constructions have been substantially finished at cost, of a considerable sum of money. There is no explanation for any delay since the withdrawal of the last suit of Achal Bahadur, plaintiff 1's own brother and a member of the plaintiff's family. It can only be explained by one conclusion, namely, that the plaintiffs had no objection to the constructions. If they had any objections they should have pursued the former suit and fought it out and if there was any legal defect on account of which Achal Bahadur plaintiff was compelled to withdraw it, another suit should have been brought at once.