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Ram Lal and anr. Vs. Muhammad Amir Mustafa Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All700; 85Ind.Cas.849
AppellantRam Lal and anr.
RespondentMuhammad Amir Mustafa Khan and ors.
Excerpt:
- - 115. indeed, there are good many other cases in which the law as laid down in paras ram v......started constructing a building of their own. the suit was, therefore, instituted for recovery of joint possession and for recovery of damages.3. the court of first instance decreed the claim for joint possession and for the demolition of the building erected by the defendants nos. 1 and 2, but dismissed the suit so far as it asked for recovery of damages. this judgment was upheld by the lower appellate court.4. the finding of the lower appellate court is in substance the same as was the plaintiffs' case except as to damages.5. two points have been urged before me. one is that the finding of fact is more or less of a speculative character. it is possible to characterize thus one or two remarks to be found in the judgment of the court below. but they really deal with the circumstances of.....
Judgment:

Mukerji, J.

1. The parties are co-sharers in the village. The suit out of which this appeal has arisen was originally instituted by the Respondent No. 1, Muhammad Amir, who happens to be a co-sharer to a large extent in the village and also the lambardar of it. The main defendants in the case were defendants Nos. 1 and 2. The other defendants were impleaded as being co-sharers in the village, who did not join the plaintiff in the institution of the suit. Some of these defendants were later on, it appears, made plaintiffs.

2. The suit was launched with the allegation that, on a portion of the village site, stood the house of one Khushla Chamar, a tenant, who died about 20 years ago. Since his death, the house was occupied by two other tenants, viz., Rajna and Zaharya. Rajna and Zaharya left the village about two years before the institution of the suit and defendants Nos. 1 and 2 removed the materials, took possession of the site and started constructing a building of their own. The suit was, therefore, instituted for recovery of joint possession and for recovery of damages.

3. The Court of first instance decreed the claim for joint possession and for the demolition of the building erected by the defendants Nos. 1 and 2, but dismissed the suit so far as it asked for recovery of damages. This judgment was upheld by the lower Appellate Court.

4. The finding of the lower Appellate Court is in substance the same as was the plaintiffs' case except as to damages.

5. Two points have been urged before me. One is that the finding of fact is more or less of a speculative character. It is possible to characterize thus one or two remarks to be found in the judgment of the Court below. But they really deal with the circumstances of the case. It cannot be denied that there was evidence on the record from which the learned Judge could come to the conclusion that Zaharya and Rajna were occupying the house and the site within two years of the suit and the defendants' case, viz., they had been in occupation of the site for 20 years, was false. In the circumstances, the defendants Nos. 1 and 2 had' no right to take possession of what was the joint property of the parties in the teeth of opposition.

6. The second question is whether the plaintiffs could, on their own behalf and-on behalf of the proforma defendants, claim the demolition of the building on the site and for joint possession of the-latter. The case of Paras Ram v. Sherjit (1887) 9 All. 661 was cited by the learned Counsel for the appellants. He urged on the basis of that authority that so long as the plaintiffs did not prove special damage, they were not entitled to succeed. But this case has not been followed in later years in this High Court. The law, as it at present stands, is that one co-sharer out of many had no right to build on what is joint land without the consent of the others. The latest case of this High1 Court is reported as Ghasitu v. Sodhan Singh (1916) 32 I.C. 690. It followed an earlier case of Najju Khan v. Imtiaz-ud-din (1895) 18 All. 115. Indeed, there are good many other cases in which the law as laid down in Paras Ram v. Sherjit (1887) 9 All. 661 has been dissented from. See for example the case of Bam Bahadur Pal v. Ram Shankar Prasad Pal (1905) 27 All. 688.

7. As the possession of the defendants Nos. 1 and 2, who are appellants in this Court, was in opposition to, and not with the consent of, the co-sharers, a decree for joint possession was properly awarded.

8. The appeal fails and it is hereby dismissed with costs.


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