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Ram Naresh Singh and anr. Vs. Muneshwar Prasad Tewari - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All556
AppellantRam Naresh Singh and anr.
RespondentMuneshwar Prasad Tewari
Cases Referred and Mohammad Sher Khan v. Bharat Indu
Excerpt:
- - 35 of 1927 was brought by achal bahadur, own brother of plaintiff ram naresh singh, a member of the joint family of the plaintiffs in respect of the constructions in dispute which failed.ganga nath, j.1. this is a plaintiffs' appeal arid arises out of a suit brought by them against the defendant for demolition of a building alleged to have been constructed by the defendant respondent on the joint land. the parties are cosharers and it is alleged by the plaintiffs that the defendant had recently constructed a building which he had no right to construct on the joint land. the defendant contended that he had purchased the zamindari share and the house of durga, pathak from his heir padarath pathak in 1918 and has since been in possession of the same and that he has built his house on the site of the cattle house and courtyard of durga pathak. the defendant also contended 'that he started his constructions in 1922 and has spent about rs. 17,000 and that he had been in.....
Judgment:

Ganga Nath, J.

1. This is a plaintiffs' appeal arid arises out of a suit brought by them against the defendant for demolition of a building alleged to have been constructed by the defendant respondent on the joint land. The parties are cosharers and it is alleged by the plaintiffs that the defendant had recently constructed a building which he had no right to construct on the joint land. The defendant contended that he had purchased the zamindari share and the house of Durga, Pathak from his heir Padarath Pathak in 1918 and has since been in possession of the same and that he has built his house on the site of the cattle house and courtyard of Durga Pathak. The defendant also contended 'that he started his constructions in 1922 and has spent about Rs. 17,000 and that he had been in exclusive possession of the land in dispute since 1918. He further contended that in 1927, suit No. 35 of 1927 was brought by Achal Bahadur, own brother of plaintiff Ram Naresh Singh, a member of the joint family of the plaintiffs in respect of the constructions in dispute which failed.

2. The trial Court decreed the suit, but on appeal the learned Additional Subordinate Judge dismissed the suit. He found that the constructions commenced, as found by the trial Court, in 1925. The plaintiffs had all along knowledge of the constructions. In fact a suit (suit No. 35 of 1927) referred to above was brought by Achal Bahadur a member of the plaintiffs' joint family to get the constructions demolished. After the withdrawal of the suit by Achal Bahadur no other member of the family of Achal Bahadur including the plaintiffs did anything till February 1931 when the present suit was brought. The respondent had spent Rs. 4,000 on the constructions till the suit of 1927 was brought. Futher constructions have been made since then and as stated by the learned Additional Subordinate Judge the constructions must have cost a substantial sum. The house stands substantially constructed. The outside walls are of pucca bricks and there arc as many as 7 or 9 rooms. The roof is tiled. The learned Additional Subordinate Judge states 'further that apart from finishing touches the main building stands already constructed according to the statement of the plaintiff 1 himself and is in the occupation of the defendant respondent. The area covered by the building is only 70 by 67 feet. The learned Judge observed:

It is obvious therefore that the plaintiffs respondents have been guilty of laches for the suit has been unreasonably delayed. The prayer for demolition if allowed would be too severe.

3. It will thus appear that the suit has been brought six years after the constructions were started and when the constructions have been substantially finished at cost, of a considerable sum of money. There is no explanation for any delay since the withdrawal of the last suit of Achal Bahadur, plaintiff 1's own brother and a member of the plaintiff's family. It can only be explained by one conclusion, namely, that the plaintiffs had no objection to the constructions. If they had any objections they should have pursued the former suit and fought it out and if there was any legal defect on account of which Achal Bahadur plaintiff was compelled to withdraw it, another suit should have been brought at once.

4. There can be no doubt that one of several joint owners is not entitled to make a building on the joint property without the consent of other joint owners. But if the building has been erected long ago it will be presumed that the cosharer in exclusive possession, who erected the building, did so with the permission of the other cosharers, especially when a suit is brought several years after the commencement of the constructions arid when the constructions have been completed at a considerable expense. No such presumption can be made in a case where the erection is of recent date and. has been objected to from the beginning. It is very necessary that a co-owner should bring his suit for demolition of a building constructed by another cosharer and for joint possession within a reasonable time. This view is fully supported by Sheo Harakh Upadhya v. Jai Gobind Tewari 1927 All. 709 and Mohammad Sher Khan v. Bharat Indu 1928 All. 59. As would appear from the facts given above there can be no doubt that a presumption can be safely raised that the constructions were continued at least after the suit of 1927, and completed with the consent of the plaintiffs. The learned Additional Subordinate Judge has therefore rightly exercised this discretion in refusing to order the demolition of the constructions. There is no force in the appeal. It is therefore ordered that the appeal be dismissed with costs and the decree of the lower Court be confirmed.


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