1. This is an appeal against the judgment and decree dated 21st May 1938 of the Second Civil Judge of Meerut by which he partly affirmed and partly varied the judgment and decree dated 4th February 1938 of the Third Additional Munsif of Meerut. The plaintiff has made the appeal and the defendant has filed cross-objections. In qasba Meerut there is a khewat No. 197, area 26 bighas 12 biswas. In this khewat is included a plot No. 5142 measuring one bigha four biswas. In or about the year 1930 Kalka Prasad, the defendant, purchased 1 bigha 13 biswas land in this joint khewat and another person named Sheo Prasad in the year 1932 purchased 17 biswas seven bis-wansis share in this joint khewat. By sub-sequent arrangement this 17 biswas seven biswansis share of Sheo Prasad is also now vested in Kalka Prasad. The remaining share in the khewat is vested in the plaintiffs Mohammad Shakir and others. It will thus be seen that Mohammad Shakir and others hold by far the largest interest in this joint khewat and the area owned by Kalka Prasad and Sheo Prasad is only a fraction of the joint khewat.
2. In the year 1930, soon after his purchase, Kalka Prasad took possession of plot No. 5142 and on this plot be planted a large number of trees and he established a garden and nursery over it. Sheo Prasad, when he purchased the property in 1932 also began to assert rights over this plot and as a result two suits were instituted, No. 979 of 1932 by Kalka Prasad against Sheo Prasad for an injunction restraining Sheo Prasad from interfering with Kalka Prasad's possession over plot No. 5142, and the other suit was No. 1002 of 1932 by Mohammad Shakir and others against Kalka Prasad and Sheo Prasad restraining them from interference with the possession of Mohammad Shakir and others over the said plot. Mohammad Shakir and others alleged in the plaint-that the plot was in their exclusive possession and that Kalka Prasad without any right had taken unlawful possession of the plot and had planted trees and a garden over it. They accordingly prayed for exclusive possession of the plot and for an injunction directing Kalka Prasad to remove his trees and garden. Both these suits were tried together and were finally decided by this Court in second Appeal No. 1534 of 1933 and No. 309 of 1934. The judgment of this Court is dated 7th April 1936 and it is to the effect. that Kalka Prasad had taken peaceful possession of plot No. 5142 in the year 1930 and he had since been in possession of it by planting a garden and trees. This Court therefore held that Mohammad Shakir and others were not entitled to an exclusive possession of the plot against Kalka Prasad and they were not entitled to an injunction directing Kalka Prasad to remove the trees and the garden and Kalka Prasad was entitled to maintain his garden and to remain in possession of the property, but Mohammad Shakir and others were entitled to a decree for joint possession in terms of Order 21, Rule 85, Civil P.C. The claim of Kalka Prasad against Sheo Prasad was decreed. The result of this litigation was that the plaintiff and others and Kalka Prasad and Sheo Prasad were declared to be the co-owners of plot No. 5142 and Mohammad Shakir and others were also given a decree for joint possession over the said plot but the claim of Mohammad Shakir and others for a direction of the removal of the trees was rejected and it was held that Kalka Prasad had been since 1930 in peaceful possession of the property and was entitled to maintain his garden and trees.
3. Some time, either during the pendency of this litigation or subsequent to its termination, Kalka Prasad constructed a small building in plot No. 5142. According to the inspection note of the lower appellate Court this building is double storeyed. There is a room and verandah on the ground floor and there is a room on the first floor. The building occupies land six by six yards and it is used for the purpose of storing seeds and for the residence of those who were employed by Kalka Prasad to look after his garden and nursery There was some controversy as to the time when this construction was made, but it has now been settled by findings of both the Courts below that they were made after the termination of the litigation mentioned above. On 4th August 1936, Mohammad Shakir and others raised an action in the Court of the Munsif of Meerut mainly for the demolition of this building and incidentally for injunctions restraining Kalka Prasad from maintaining his garden and trees and from making further constructions on plot No. 5142. This claim was partly decreed and partly dismissed by the Munsif and on appeal the decree of the Munsif has been partly varied and partly affirmed. The lower appellate Court differing from the trial Court has held that the plaintiffs Mohammad Shakir and others are not entitled to secure demolition of the building made by Kalka Prasad, but the lower appellate Court in concurrence with the trial Court has given to the plaintiff an injunction limited to this, that Kalka Prasad is not permitted to put up fresh constructions in the said plot. As I have said before the plaintiff has made a second appeal to this Court and the defendant Kalka Prasad has filed cross objections and the two questions which arise for my consideration are : (1) whether Mohammad Shakir and others are entitled to have the building demolished, and (2) whether the injunction which has been granted by the lower appellate Court; to Mohammad Shakir and others was erroneous in the circumstances of the case
4. The question of demolition of the building may be considered first. The contention of Mr. Khwaja is that no co-owner has got a right to construct a building on the joint land against the consent of the other co-owners and irrespective of the question whether the building in question caused damage to the cosharer or not the cosharers who have not consented to the construction of the building can as a matter of right ask for its demolition. Mr. Khwaja further contends that by the decree of the High Court dated 7th April 1936 the plaintiffs were put in joint possession of the property and the defendant Kalka Prasad in a most highhanded manner during the pendency of that litigation had constructed the building in dispute and this act of Kalka Prasad amounts to a serious encroachment on the rights of the plaintiffs as cosharers. The contention of Mr. Mukerji on the other hand is that it is not the law that in every case where a building has been put up by a cosharer against the consent of the other cosharers the other cosharers can as a matter of right demand the demolition of the building and he refers me to certain cases decided by Oudh Courts in Parmai v. Mohan ('26) 13 A.I.R. 1926 Oludh 412, Gaya Prasad Singh v. Someshwar Nath Singh ('26) 98 I.C. 791 to certain cases decided by the Lahore High Court in Ahmad Gul v. Rahim Khan ('26) 13 A.I.R. 1926 Lah. 52, Majju v. Teja Singh ('18) 5 A.I.R. 1918 Lah. 51 and to an old decision of our own Court of Mahmood J., reported in Paras Ram v. Sherji ('87) 9 All. 661. It is not necessary finally to pronounce an opinion upon this vexed question. I am free to confess that there is substantial authority which favours the contention of both sides.
5. But the question which arises for my consideration in this case is a somewhat different one. As a result of previous litigation, as expressed in the judgment of this Court dated 7th April 1936, it has now been settled that the plaintiff and others are entitled and have been put in joint possession of this plot, but it has also been settled that the defendant Kalka Prasad has been in peaceful possession of this property since 1930 and he has planted a garden and nursery over this plot which he was entitled to maintain and to the extent and for the purpose of the garden it must be taken that the possession of Kalka Prasad was exclusive and could not be interfered with by the other cosharers. Whether the decision was right or wrong, it has now got to be applied to the rights of the parties and if I am right in the interpretation of the above judgment there is no difficulty in adjusting the right of the parties.
6. It has now been ascertained as a result of the findings arrived at by the lower appellate Court that this small building which has been constructed by Kalka Prasad and mainly used for the purpose of his garden and nursery occupies, as I have said above, only the land measuring six by six yards. It has also been found that over this plot, when it was in possession of the tenants Niadar and others prior to the year 1930 or 1932, there used to exist small huts of those tenants and although the building now in dispute has not been constructed on the precise spot where those huts were situated, this building has been constructed near about the place occupied by those huts and it occupies if anything either equal area or less area of those huts. It has also been found by both the Courts below that no damage whatever has been caused to the plaintiff by the construction of this building. Once it is accepted that the defendant is entitled to maintain his garden and nursery and to that extent he is entitled to put under exclusive use the plot in dispute I do not see how by simply adding a small building over a small plot of land and which is absolutely necessary for the purpose of the garden and nursery, is the plaintiff prejudiced. In Sheo Harakh v. Jai Gobind : AIR1927All709 Ashworth, J. has observed that; a cosharer who has been allowed exclusive possession of a joint land limited to a certain purpose has got no right to enlarge the scope of that purpose. Accepting it to be the law as applicable to the case, can it be said that by putting up this small building over 6 by 6 yards of land in a plot measuring 1 bigha 4 biswas, greater portion of which is covered by trees and a nursery and which trees and nursery have got to be maintained and cannot be disturbed, Kalka Prasad is enlarging the scope which has been reserved to him for the use of the land? I am therefore of opinion that the case comes within the principle laid down in Sheo Harakh v. Jai Gobind : AIR1927All709 as explained in Makhan Lal v. Sajan : AIR1933All655 and the lower appellate Court has taken a correct view of this matter and the decree under appeal, in so far as it relates to the question of the demolition of the building, should be affirmed.
7. There remains now to take a brief notice of the cross-objections. In my opinion the learned Judge acted very properly in granting the injunction in this particular case. There are certain disquieting features in this case. In this khewat of 26 bighas 12 biswas there are reasons to suppose that plot No. 5142 which is now in dispute is by far the most valuable. It is quite true there is no clear finding on the matter but it is obvious that this plot is in the abadi and is close to the city of Meerut and has got obvious advantages which the other portion of the khewat does not possess and that is the reason why both the plaintiff and the defendant have been scrambling for its exclusive possession. The plaintiffs are the owners of by far the largest area of the land. The defendant Kalka Prasad purchased a small joint share of the khewat and by some means or other he stole a march over the plaintiffs : and secured virtual possession of this about the most valuable plot of the entire joint area. It is true that the plaintiffs slept over their rights and they allowed Kalka Prasad to take possession and now that a decree has been passed in the previous litigation settling their rights it is too late in the day to think of the equities which might have arisen in different circumstances. But there is no reason that there should be any further encroachment upon the right of the other cosharers who owned the larger interest in the property and in order to emphasize the right of the co-owners and to protect them the injunction granted by the lower appellate Court was eminently justified. Both the appeal and the cross-objections fail and they are dismissed, but in the circumstances of the case I direct the parties to bear their own costs throughout.