Kanta Bhatnagar, J.
1. Non-petitioners had filed a suit for perpetual injunction against the petitioners in the Court of Munsif Magistrate, Kanod with the averments that the parties are the descendents of a common ancestor. That after partition of the property the court-yard w is kept as the joint property to be used by all the coheirs. The suit related to the portions shown as A, B, C, D the wall construction at position E to F use of portion G to H in the map Ex. 1, filed along with the plaint. According to the plaintiff, defendants were intending to construct a latrine and a bath-room at portions A, B, C & D and had constructed a wall at portion E. That, they were keeping their cattle at that portion. That, at portion G to H they were putting their cow-dungs etc. & were thereby creating nuisance to the plaintiffs.
2. The case put up by the defendants was that the disputed portion was not the joint court-yard rather was the exclusive property of the defendants, on which they were enjoying peaceful possession for last forty years. Regarding the construction of the wall, the contention was that it was constructed in the year 1950 and no nuisance was created.
3. Five issues were framed by the trial Court. Issue No. 1 related to the ownership of portions A, B, C & D in the map. Second issue was regarding the construction of the wall at portion E within three months prior to- the filing of the suit and the defendants keeping their cattle there. Third issue, related to the defendants placing their cow-dungs at portion G to H creating inconvenience to the plaintiffs. Fourth issue related to the certain other persons also being entitled to use disputed portions of the property. Fifth issue was for the relief.
4. The learned trial Judge after considering the evidence and the 'farakties' (Partition deeds) Exs. 7, 8 and 9 arrived at a conclusion that some Other parsons were also entitled to the use of the property. The learned Judge however held that the fourth issue had no bearing on the suit. Regarding the first three issues, the conclusion drawn was that the courtyard was of course joint property of the parties but the long user of the' same by the defendants entitled them to do so on the principle of adverse possession, Issue No. 2 relating to the defendants placing cow-dungs and making inconvenience to the petitioners was decided in favour of the plaintiffs. In view of-the aforesaid findings, the learned trial Judge did not hold the plaintiffs entitled to any relief regarding the portions, the defendants were enjoying for a long time but granted relief so far as portion G to H was concerned and the suit was decreed to that extent to the effect that decreed to that extent to the effect that defendants were prohibited from piecing cow-tungs etc. at portion G to H in Ex. 1 and also not to obstruct the plaintiffs for using the stair case shown at portion G. The Court decreed the suit of the plaintiff for this limited prayer and dismissed the same for the other reliefs sought.
5. Being aggrieved by the decision of issue Nos. 1 and 2, plaintiffs preferred an appeal. Defendants also filed cross objection regarding that decree passed against them for the relief sought with regard to portion G to H shown in the map Ex. 1.
6. The learned Civil Judge by his judgment dated November 26, 1970 accepted the appeal as well as the cross-objection and reversed the findings of the trial Court on all the three issues The learned Judge was of the opinion that the plaintiffs had succeeded in establishing the portion A, B, C, D, and H to be joint property of the parties. That, there being no plea of adverse possession, the mere user of the court-yard by the Defendants would not benefit them. The learned Civil Judge was also of the opinion that as the construction of the wall & the latrine & the bath-room was conducted during the pendency of the suit, as is evident from the order of the Court dated April 6,1970 vacating the temporary injunction, the plaintiffs were entitled to mandatory injunction in that regard. With these findingings, the learned civil Judge decreed the suit of the plaintiffs for issues No. 1 and 2 prohibiting the defendants from erecting any construction or fixing the tap in the joint court-yard and to remove the construction at portion A, B, C and D within a period of two months. Similar order for removal of the wall at portion B was passed. The plaintiffs were'' also prohibited from creating any obstruction in the enjoyment of the court-yard (Pol) and the stair-case by the plaintiffs. The cross-objections filed by the defendants regarding portions G to H were allowed and it was held that as per partition deed the sharers of the property were entitled to use the portion in front of their houses known as 'angan', and the defendants did not commit any wrong in placing their cow-dungs etc. at portion G to H, which according to the map Ex. 1 and Ex, 1A filed by the parties was part of their 'angan'. The suit of the plaintiff was decreed in these lines with an order for two-third costs.
7. Being dissatisfied by the judgment of the first appellate court, the defendants have filed this Second Appeal in this Court.
8. Mr. S.R. Bhandari, learned Counsel for the appellants, has streneously contended that from the various 'farakties' Exs. 7, 8 and 9 it was decided that the sharers would use the property in front of their houses know as 'angan' and therefore, the map Ex.1 should not have been considered authentic rather marking of Ex. 1A should have been taken into consideration.
9. So far as the factual aspect of the matter is concerned the two courts have elaborately discussed the evidence, occular as well as documentary and have arrived at a concurrent finding that the disputed court-yard at portion A,B,C, D and E was the joint property of the parties who are descedents of a common ancestor. Hence there is no scope of any reappraisal of the evidence in this concern and disturb the findings of the Civil Judge that the Ex. 1 would form part of the decree.
10. It was only on the ground of adverse possession that the trial Judge has dismissed the suit of the plaintiffs regarding the prayer covered by issue No. 1 and 2.
11. The pertinent question calling for determination in this case would therefore be regarding the plan of adverse possession. Mr. Bhandari placed reliance on the cue of Sribhagwan Singh and Ors. v. Rambasi Kuer and Ors. : AIR1957Pat157 wherein their Lordships were phased to hold that were a suit based on title extended over more than twelve years, adverse possession need not be specifically pleaded as it is included in the plea of title. In that case the plaintiff throughout pleaded that they were put into possession by one of the defendants in 1927 and continued in possession till the adverse order was passed in criminal proceeding after they got the registered sale deed in 1940; Their Lordships were of the opinion that the transferee having acquired tide under an invalid transaction, and continuing in possession for, more than twelve years, would b; deemed to have acquired a perfectly good title to the property. In view of the findings of the first court of appeal, after consideration of the evidence on record oral and documentary that the plaintiffs' allowed the defendants to cultivate the suit land with knowledge and consent by two of the defendants, the argument, that no evidence was adduced on the question of adverse possession by the parties, was not considered.
12. In the case on hand, there is no question of any party being put in possession by the order and having a settled title over the same. The two, courts after giving due consideration on the oral as well as documentary evidence have arrived at a conclusion that the property in question was joint. There cannot be any dispute on the point that so long as the property of the cosharers remains joint every one of them has right over every inch of that property and no body can claim exclusive right on any portion. This being the position of law, merely because, the defendants have come with a case that they were using the property, it cannot be said that they had raised a plea of adverse possession. The learned appellate Judge after considering the contentions of the parties have given the finding that the plea of adverse possession was not at all taken. Mr. Bhandari also could not point out whether any plea of the adverse possession was taken. His contention is that because of the user of the property for a long period, the plea of adverse possession should be deemed to have been taken.
13. In the case of P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 the question regarding the adverse possession of the coheirs came for consideration. Their Lordships were pleased to enunciate the following principle: 'It is settled rule of law that as between coheirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and, enjoyment by one of them to the knowledge of the other so as to constitute ouster'.
14. Their Lordships further held that the burden of making out ouster is on the person claiming to displace, the lawful title of a coheir by his adverse possession.
15. With this principle in view when the1 facts and circumstances of the present case are looked in to it is evident that defendants could not establish the ouster of other coheirs for a longtime. The learned Civil Judge while discussing the evidence has arrived at a conclusion that even by the agreement Ex. At filed by the defendants, the court yard after the 'angan' was kept to the joint. The receipt of twenty rupees as masonary charges filed by Vazir Mohammed and the deposition of defendant Ram Vilas were contradictory regarding the dates of the construction of the wall. According to the former the construction was on 'jeth' sudi teej samvat year 2006 while according to the latter the construction of the wall was done in samvat year 2018.
16. With this type of evidence, the learned Civil Judge in my opinion as correctly given the findings that no plea of adverse possession was taken and the circumstances did not indicate that the parties could prove the adverse possession, therefore, the conclusion arrived at by the learned Civil judge based on sound reasonings calls for no interference.
17. Another contention of Mr. Bhandari, learned Counsel forth appellant is that the learned Civil Judge should not have passed decree in terms of mandatory injunction for the removal of the construction. This point does not require such discussion. The learned Civil Judge has referred to the circumstances of the case, evident at the time of the passing of the temporary injunction and vacating the same by the trial Court and imposing the condition that in case the applicants win, the plaintiffs liability will be to remove the structure and make good the loss, if any to the applicants. The temporary injunction was granted with the view to stop the construction as observed by the learned trial Judge.
18. Consequently, the appeal is dismissed with costs.