BHIKHUMAL Vs. MATKUL SINGH

JUDGEMENT

(1.) THIS appeal arises out of suit brought by the plaintiffs for the recovery of possession of 8? sihams out of 69 sihams by partition of an Ahata No. 1718 in Mauza Roorkee, or in the alternative for a decree for joint possession of the ahata against the defendants by the removal of the materials of a bouse. The plaintiffs alleged in their plaint that they and defendants Nos. 1 to 17 were owners of the land of the ahata and that they had allowed one Budhu to build a house in it. Budhu accordingly built a house and lived in it. He sold it to defendants Nos. 18 and 19 sometime in 1909, and in 1911 the latter acquired the proprietary rights of defendants Nos. 1 and 2 in the ahata in suit. Budhu could only sell the materials of the house and not the right of residence in it. The defendants Nos. 18 and 19 have, by virtue of the purchase of the interest of defendants Nos. 1 and 2 in the ahata, been retaining the house and keeping it up as a residential house. The plaintiffs then prayed that the defendants should be directed to pull down the house and remove its materials. The defendants denied the right of the plaintiffs to the ahata in question and pleaded that the occupants of houses in Roorkee where the ahata in question is situte have the right of sale of their houses with the right of residence. The Court of first instance decreed the claim for joint possession, but rejected the prayer for removal of the materials on the ground that in Roorkee a tenant could transfer a house with the right of residence in it. On appeal the learned District Judge held that a tenant in Roorkee had no right to transfer a house with the right of residence but could only transfer the materials of the house. He, however, affirmed the decree of the first Court on the ground that defendants Nos. 18 and 19 had prior to the institution of the present suit acquired the proprietary interests of defendants Nos. 1 and 2 in the ahata. The plaintiffs have come up in second appeal to this Court and contend that all that the defendants Nos, 18 and 19 purchased were the materials of the house and that their subsequent purchase of the interests of defendants Nos. 1 and 2 in the ahata does not entitle them to retain the house or live in it or let it out on rent. It is contended that one of several joint owners of land is not entitled to erect a building upon joint land without the consent of the other co-sharers, and if he cannot build himself, be is not entitled to retain the house purchased by him from a tenant where all that the tenant could convey were the materials of the house.

(2.) IT is unfortunate that the respondents do not appear in this Court, nor does any one represent them to meet the case for the appellants. IT appears that the case-law is in favour of the appellants, who have cited the following cases:--Shadi v Anup Singh 12 A. 436 : A.W.N. (1890) 95 : 6 Ind. Dec. (N.S.) 1023, Najju Khan v. Imtiaz-ud-din 18 A. 115 : A.W.N. (1895) 243 : 8 Ind. Dec. (N.S.) 782, Muhammad Ali Jan v. Faiz Bakhsh 18 A. 361 : A.W.N. (1896) 97 : 8 Ind. Dec. (N.S.) 947, Ram Bahadur Pal v. Ram Shankar Prasad Pal 27 A. 688 : A.W.N. (1905) 158 (F.B.) : 2 A.L.J. 455, Budh Singh v. Parbati 29 A. 652 : 4 A.L.J. 556 : A.W.N. (1907) 231, Lachmi v. Ganga Din 5 A.L.J. 93 : A.W.N. (1908) 19 and Ghayas-ud-din v. Ghulam Abbas 2 Ind. Cas. 854, None of these, cases are exactly in point. The case of Shadi v. Anup Singh 12 A. 436 : A.W.N. (1890) 95 : 6 Ind. Dec. (N.S.) 1023 is a Full Bench case, in which it was decided that one of several co-sharers in a mahal could not build upon common land without the consent of other co-sharers, though no special damage had been suffered by the other co- sharers. The other cases subsequent to the case of Shadi v. Anup Singh 12 A. 436 : A.W.N. (1890) 95 : 6 Ind. Dec. (N.S.) 1023 have followed this principle. In the case of Muhammad Ali Jan v. Faiz Bakhsh 18 A. 361 : A.W.N. (1896) 97 : 8 Ind. Dec. (N.S.) 947 a stranger had built upon common land belonging to certain co-sharers. Subsequent to the erection of the building some of the co-sharers had purchased it, and it was held that the purchasers were quoad the said building trespassers and a suit would lie against them by the remaining co-sharers to be put into joint possession of the land by the removal of the building. If we apply the principle laid down in the case of Muhammad Ali Jan v. Faiz Bakhsh 18 A. 361 : A.W.N. (1896) 97 : 8 Ind. Dec. (N.S.) 947, the present appeal must prevail. In the present case the finding of the lower Appellate Court is that Budhu the tenant could not sell the right of residence but only the materials of the house, and as a matter of fact he sold only the materials of the house to defendants Nos. 18 and 19. Those defendants, therefore, acquired by their purchase only the materials of the house and the subsequent acquisition by them of the interests of defendants Nos. 1 and 2 in the ahata would not give them as against the other co-sharers a right of residence in the house. I, therefore, allow the appeal and modify the decree of the Court below by decreeing the claim of the plaintiffs-appellants for joint possession over the ahata in suit by removal of the materials of the house. The defendants will remove the materials within three months from to-day, and in case they fail to do so, the plaintiffs will be at liberty to apply to the Court of first instance for the removal of the materials, and the costs incurred in the removal will be recoverable by the plaintiffs from defendants Nos. 18 and 19. Plaintiffs costs are allowed throughout as against defendants Nos. 18 and 19.