1. These are two Letters Patent appeals, one by the defendants and one by the plaintiff, against a judgment of the learned Chief Justice in second appeal. The plaintiff had brought a suit for demolition of cattle troughs and thatched sheds standing on two numbers, 265 and 266, which were joint numbers owned by the parties to the suit, who are zamindars, and these numbers are in the abadi of the village. The Court of first instance decreed demolition both of the cattle troughs and of the thatched sheds. The lower appellate Court upheld the decree for demolition of the thatched sheds but held that the cattle troughs may remain. The findings at which the lower appellate Court arrived were that the cattle troughs did not amount to exclusive possession of the plot or part of it, but that the sheds were a step towards an exclusive use of the land and ousting others. It had been stated by the pleader for the defendants: 'The thatched shed on the cattle trough in question rests on beams. There is no wall underneath it'. The learned Chief Justice followed the view of the lower appellate Court and dismissed both the appeal and the cross-objection. It was urged before him that there were certain rulings of the Lahore and the Calcutta High Courts in which the view had been taken that exclusive possession of joint land does not entitle a co-sharer to maintain a suit until special damage was proved. On the other hand the rulings of the Allahabad High Court had taken a different view. These rulings are Mukund Lal v. Mohan Lal : AIR1927All518 , Sheo Harakh : AIR1927All709 and Parmeshri Kunwar v. Dhuman Kunwar : AIR1929All393 . The view which has been expressed in these rulings has been stated by the learned Chief Justice as follows and we consider that this view should be adopted:
I would therefore be inclined to hold that if the construction put upon the joint land is of such a character as amounts to a permanent structure, or is at any rate of such character as to give exclusive possession to one co-owner to the ouster of the other co-sharers, such exclusive possession is not justified and can be objected to. On the other hand, if one co-owner occupies a piece of joint land not occupied by others by having some temporary structure or construction on it, there would be no ground for objection, because the structure is of a temporary character only.
2. Learned Counsel for the defendants-appellants pressed for the view which has been laid down in Akshay Kumar Shaha v. Bhajagobinda Shaha : AIR1930Cal341 . That view alluded, on p. 343, Col. 1, to the difference in view between the Allahabad High Court and the Calcutta High Court and in Col. 2 stated:
Sole occupation by itself is not ouster unless it is attended by an assertion of a hostile title.
3. On the other hand in this High Court it has been held that the erection of a permanent building on joint land is an ouster of the other co-sharers. It appears to us that the dictum laid down by the learned Chief Justice does specify special damage which arises to the other co-sharers, the special damage arising from the erection of a permanent structure or a structure of such a character as will give exclusive possession to one co-sharer to the ouster of the other co-sharers. In these case3 in our view the special damage does arise from the other co-sharers being deprived of the use of land on which the structure has been erected. Reference was made also for the defendants-appellants to Ahmad Gul v. Rahim Khan A.I.R. 1926 Lah. 52. That was a ruling by a learned Single Judge and the rulings which he based his decision on were not the rulings of the Lahore High Court but of the Lahore Chief Court which had preceded it. Learned Counsel therefore has merely shown that a Single Judge of the Lahore High Court and a Bench of the Calcutta High Court have held a view contrary to the view which has been held for many years in this High Court. It does not appear to us that this is any reason for the constitution of a Pull Bench to revise the view which has been held consistently by this High Court. For these reasons we dismiss the appeal of the defendants with costs.
4. In regard to the appeal of the plaintiff the point is urged that the cattle troughs should also be demolished because they form an ouster of the plaintiff. The lower appellate Court which is a judge of facts has found that these cattle troughs do not constitute any such ouster. That is in our opinion a finding of fact which is binding on a Court of second appeal. We see no reason to interfere with the view which has been taken by the learned Chief Justice and we accordingly dismiss the Letters Patent Appeal of the plaintiff also with costs.