BIR AHIR Vs. BHAGWANT PRASAD

JUDGEMENT

(1.) This is a defendants appeal and arises out of a suit brought against them by the plaintiffs for joint possession over the plots described in the plaint by demolition of the constructions made thereon by the defendants. The trial Court decreed the suit. In appeal the learned Subordinate Judge confirmed the decision of the trial Court. Out of the plots which were in dispute this appeal is confined to only one plot No. 185 which was the sir of the defendants. It has been found by both the Courts below that the defendants are co-sharers; that the constructions have been made by the defendants on this plot (plot No. 185) recently without the plaintiffs consent, and that there is no bar of estoppel or acquiescence. It has also been found that this plot is defendants sir.

(2.) It is urged by the learned Counsel for the appellants that inasmuch as the plot is their sir and they have a right of exclusive possession, their buildings should not be demolished. The defendants rely on Lahaso Kuar V/s. Mahabir Tewari 13 A.L.J. 555 : 29 Ind. Cas. 15 : 37 A. 412. This case is distinguishable. There it was found that the defendant had been in possession of the plot in dispute by making constructions thereon with the consent of the other co-sharers. It was held that when one co-sharer is in exclusive possession of a particular plot for a very long time and has made constructions thereon, the presumption is that he is so in possession with the consent of the other co-sharers. The other co-sharers cannot after lying by for many years come in and ask to have the constructions demolished. It is not the case here.

(3.) There is no doubt that the plot has been in possession of the defendants as their sir land for a long time but the fact that it has been in their possession as sir land shows that the defendants were allowed to occupy it, and to have exclusive possession over it for a particular purpose, namely, cultivation and the defendants did use the plot for the same purpose till they chose to build the constructions in dispute. The defendants had no right to use the plot for a different purpose and to alter the character of the exclusive possession in such a manner as it might have a prejudicial effect on the plaintiff in the event of partition. The plaintiffs who are co- sharers are entitled to object to the use of the land which had not been authorised by them expressly or by implication. It has been urged that in the case of partition the plot would fall to the share of the defendants. It is not certain that it would fall to the share of the defendants. It may or may not. In case it is not allotted to the share of the defendants, and if it is allotted to the plaintiffs, the plaintiffs right will be affected by the buildings if they are allowed to remain on the agricultural land. In Sheo Harakh Upadhya V/s. Jai Gobind Tewari , it was held that one of several joint owners was not entitled to make a building on the joint property without the consent of other joint-owners notwithstanding that the erection of such building might cause no direct loss to the other joint owners, and in such a case a mandatory injunction ought to be granted even though it was found that the land built on it had been in the exclusive possession of the person erecting the building where the erection was of recent date and had been objected to from the beginning. The principle to be applied in such cases was whether the erection of the building was in keeping with the method of exclusive possession hitherto enjoyed by the co-owner. There is no force in the appeal. It is, therefore, ordered that it be dismissed with costs.