1. This is a second appeal by the plaintiffs whose suit was dismissed by both the lower Courts. The plaintiffs are cosharers in Tan agricultural village and they sued for the demolition of a nohra or cattle shed alleged in the plaint to have been for two months under construction by the defendants in front of another nohra built about a year before the plaint. The plaint also claimed damages for their share of a farash tree alleged to have been cut by the defendants. The defence was that the nohra was 50 or 60 years old and that the defendants were also cosharers in the village and the abadi had not been partitioned. The Munsif found that the defendants were also cosharers in the khewat numbers in which the plots in dispute lie, so the parties are joint owners of the land in question. He made a local inspection and found:
I am further inclined to think that the entire building is not a new one. There are two apartments in it. The inner one appeared to me at the time of inspection as an old building of some years standing. It seems to have been built after the partition of 1915 and possibly it is not more than 12 years, old. The outer portion which consists of the gateway in the middle and the two rooms one on each side is a fairly recent building and does not scorn to be more than a few months old....The patwari who is a plaintiff's witness had to concede that the enclosure had been made move than five years ago. The lower Court has adopted the findings of the Munsif and has adopted his view of the law which was stated as follows: 'One of the several joint owners is not entitled to erect a building on the joint property although it causes no direct loss to the other co-sharers, but whore one of thecosharers has enjoyed peaceable exclusive possession over a portion of the joint land he cannot be ousted and the remedy open to the other cosharers is to sue for partition : AIR1933All440 , Ram Harakh Pande v. Chunni Singh.
2. The Munsif decreed damages for the tree so that is not in appeal. The lower appellate Court found:
from the evidence it appears that the respondent's enclosure is old and it is within that enclosure that the new constructions have been made. This being so there are no good reasons for demolishing the buildings, A cosharor is fully entitled to build within his compound and so long as he does not encroach upon any new site ho would not be disturbed.
3. The second ground of appeal argues that the constructions should be demolished as there is no finding that they are over 12 years old; the fifth ground argues that even if the entire house was not new the extensions were liable to be demolished and the sixth ground argues that a cosharer has, no right to change the use of the land in his exclusive possession. Argument was not made on other grounds. learned Counsel for appellant first referred to Shadi v. Anup Singh (1890) 12 All 436. In that case:
The suit was brought within three or four days after the defendant had commenced to erect his kachcha buildings. An interim injunction was granted in the case.
4. The learned Chief Justice stated on p. 438:
All that we have got to consider is that almost instantly on the unlawful attempt of the defendant to appropriate, and in fact, to make partition on his own behalf, one of the cosharers invoked the assistance of the civil Court to prevent the defendant from interfering with his rights as a cosharer. In my opinion the plaintiff is entitled to a perpetual injunction. I would dismiss the appeal with costs.
5. Straight, J., also found:
But upon the facts as found by the learned Judge, I cannot say that he has exorcised a wrong discretion in granting the injunction, and I therefore dismiss the appeal with costs.
6. The ruling therefore was based on the fact that the plaintiff had obtained an injunction within three or four days of the defendant beginning to make constructions. That fact is not present in the case under appeal. On p.437 the learned Chief Justice set out the facts which would entitle plaintiff to have buildings demolished:
He found that the defendant was building upon land which was in excess of the share that would come to him on partition, and that on partition the plaintiff could not be adequately compensated. Now this finding of fact would in my judgment have entitled the plaintiff to a mandatory injunction to pull down the buildings even if they had been built, assuming that they had been built without the acquiescence of the plaintiff.
7. The present case differs because there is no such finding that the defendant has built on land in excess of what would come to him, on partition. Therefore on the principle of this ruling the plaintiff is not entitled to demolition of the constructions of defendant.
8. learned Counsel next referred to a very brief ruling which purports to follow Shadi v. Anup Singh (1890) 12 All 436. This is Najju Khan v. Imtiazuddin (1890) 12 All 436. The facts in that case differ from the facts in the present case as in the present case the finding is that the new constructions have been made within an old enclosure of the defendants. In the ruling there was merely the erection of a new sehdari on joint land of the parties. The Court held that it was not necessary to prove direct loss to other cosharers, and ordered demolition. Reference was next made for appellant to a Single Judge ruling reported in : AIR1927All709 , Sheo Harakl v. Jai Qobind. On p.710, if is stated:
The principle to be applied in this case is whether the erection of the building by the appellant is in keeping with the method of exclusive possession hitherto enjoyed by the appellant. If so, there should be no interference the other co-sharers having allowed the appellant to occupy exclusively in a certain way must be deemed to have consented in advance to any use of the land consonant with the exclusive possession permitted. In the present case however the appellant is attempting to build a sitting room on land hitherto merely used for troughs for cattle. This is to alter the character of the appellant's exclusive possession.
9. Now in the present case the finding is that there is an old cattle shed, and enclosure for cattle, and that within the enclosure there has been addition to the cattle shed, the addition also being used for cattle. The method and character of the exclusive possession of the defendants over the land inside the enclosure has not altered, as the land has all along been possessed for use for cattle. On the principle of this ruling also the plaintiffs are not entitled to any relief of demolition. Reference has also been made by the learned Counsel to a ruling reported in Lachmi v. Ganga Din (1908) 5 ALJ 93. It was alleged that this case was similar to the present case. On p.93 there is a reference in the judgment of Richards, J., to the effect that the land on which defendants build had been in use of defendants. But in the judgment of the Bench which heard the Letters Patent Appeal there is no mention of this fact, if it were really a fact, and the judgment therefore is not an authority on the point in question. In the present case it has. been definitely found by the lower appellate Court as follows:
from the evidence it appears that the respondents' enclosure is old, and it is within that enclosure that the new constructions have been made.
10. This finding differentiates the present case from the ruling in Lachmi v. Ganga Din (1908) 5 ALJ 98. Reference was also made to Raton Barhai v. Kishen Dei : AIR1933All288 , but that was a case of a plaintiff zamindar suing a defendant tenant, and not a case between two co-sharers. I consider that no case has been made out for appellants and I dismiss this appeal with costs. Permission was asked for a Letters Patent Appeal, but I do not consider that any case has been made out to lay before a Letters Patent Bench.