1. The facts which give rise to the present appeal are as found by the lower appellate Court that the defendant-appellant before me, a co-sharer in the village bought the house of one Durga tenant of the village, in the year 1902 at an auction sale and that shortly before the institution of the present suit he began constructing a pucca two storied building on the site of Durga's house. The lower Court finds the site to be part of the common land. The plaintiffs, who are also co-sharers, sued for demolition of the new building and for injunction restraining the defendant from building on the site of Durga's house. The lower appellate Court held on these facts that the plaintiffs were entitled to the relief asked for and decreed the plaintiffs' suit. The defendant comes here in second appeal. The right of a co-sharer to restrain another co-sharer from building on common abadi land has been recognised in a long series of decisions in this Court. It is sufficient to refer to a Full Bench decision reported in Shadi v. Anup Singh 12 A. 436. The learned Vakil for the appellant does not challenge the law laid down in these decisions but contends that they are not applicable to the present case. His argument is that Durga must be held to have had a permanent grant of the land for building purposes, that he could transfer what rights he had to defendant and the latter could continue in occupation of the site of the house and use it in the same manner as his transferor might have done. This argument makes certain assumptions the truth of which has not been demonstrated viz., that the grant of land in the abadi for building purposes is a perpetual grant, and secondly, that the original grantee had any right of transfer. This second point is one which constantly arises and has to be decided with reference to the custom prevailing in the particular village.
2. The correctness of the finding arrived at by the Court below that the defendant was erecting a two storied pucca building on the old house was challenged. A certificate was given that the finding was not supported by evidence. On behalf of the respondents I have been referred to certain evidence on the record which goes to show that the defendant was constructing a pucca two storied building. In my opinion the case is one which falls within the principle of the ruling enunciated in the Full Bench decision above referred to and the decision of the Court below was a right one. If the contention advanced on behalf of the appellant be allowed, it is conceivable that a co-sharer might buy up from time to time the sites of all the tenants' houses and, build on them or use them as he liked with the result that other co-sharers will, have to find other sites for their tenants' houses. The appeal is dismissed with costs.