1. The appellant before us was defendant 1 in the suit, which was for the demolition of certain constructions which according to the plaint had been put up by the appellant in plots Nos. 343, 344 and 345. The trial Court dismissed the suit, but the lower Appellate Court has decreed it in part and has ordered the demolition, of the constructions lying in plot No. 345, and has also given to the plaintiff a decree for joint possession over plot No. 345 with defendant 2. The case of the plaintiff was that plots Nos. 343, 344 and 345 were the sir plots of the plaintiff and defendant 2 and that defendant 1 had built a house, a charan and a cattle trough and had dug a pit and had constructed a well in these plots recently without the consent of the plaintiff. The defence was that there had been a private partition between the plaintiff and defendant 2 under which plot No. 343 had been allotted to the plaintiff as his sir and plots Nos. 344 and 345 had been allotted to defendant 2 as his sir, that none of the constructions lay in plot No. 343, that the house was situated in plot No. 344 and had been rebuilt on the old foundations of a house which had stood; there for 15 years, that the charan and cattle trough were situated in plot No. 345 but that the well and the pit were situated in none of the three plots mentioned by the plaintiff but in plot No. 341 which, belonged to defendant 1 himself. The trial Court held on all the material points in favour of defendant 1. The lower Appellate Court has agreed with the findings of the trial Court that the plaintiff had failed to prove that any of the constructions complained of was situated in plot No. 343 and that the suit with regard to the house in plot No. 344 was barred by time. It has however held that the charan and cattle through situated in plot No. 345 had been put up only two years before the suit without the permission of defendant 2. The view taken by the Court below is that although as the result of the private partition, defendant 2 alone was entitled to remain in possession of plots Nos. 344 and 345 as his sir, the joint ownership of the plaintiff could not be destroyed by the private partition and that the plaintiff was therefore entitled to bring the suit against defendant 1 who was a mere trespasser, as by the action of defendant 1 the plaintiff's Tight of ownership was prejudiced. The learned Additional Civil Judge has referred to the case in Bir Ahir v. Bhagwant Prasad (1935) A.W.R. 1116.
2. In our judgment the decision of the lower Appellate Court to the effect that the private partition could not destroy the plaintiff's right of ownership in plots Nos. 344 and 345 and that the plaintiff was entitled to sue a trespasser is correct and we agree with the decision in the case in 1935 Bir Ahir v. Bhagwant Prasad (1935) A.W.R. 1116. On the findings of fact recorded by the lower Appellate Court that the constructions in this plot No. 345 had been made only two years before the suit, the decree for demolition granted in favour of the plaintiff is clearly correct. The lower Appellate Court should not however have passed a decree for joint possession in favour of the plaintiff. Defendant 2 is antitlod to remain in exclusive possession of the sir plots Nos. 344 and 345 under the private arrangement until a regular partition in carried out or a fresh arrangement between the parties is arrived at and the granting of a decree for joint possession is improper. For the reasons given above, we modify the decree of the Court below only to this extent that we grant the plaintiff, in addition to a decree for the demolition of the constructions in plot No. 345, a declaration of his title as joint owner with defendant 2 of plots Nos. 344 and 345, and set aside that portion of the decree which purports to grant a decree to the plaintiff for joint possession. As already stated, the decree for demolition is maintained. The appellant having failed on the principal point involved in the case, the plaintiff respondent will have his costs of this appeal. The costs in the Courts below is hall be governed by the order of the lower Appellate Court.