1. This is an appeal by the first defedant against a judgment of the learned Subordinate judge of Khulna, dated the 20th May 1914, reversing the decision of the Munsif of Sathhira. The plaintiffs brought the suit in the Court of first instance claiming a mandatory injuction and asking for an order on the appellant before us to demolish a certain building that he had erected on a portion of the joint property. In the course of the proceedings the plaint was amended by permitting. the plaintiffs to the joint possession The parties belog to the same family and they occupy a homrstead of 60 lighas, parts of which are in the exclusive possession of them and the remaining portion is in their joint Possession. A piece of land about one cattah in area, according to the finding of the lower Appellate Court, for many years had been used on particular ceremonies by different members of the family for certain particular purposes. The user was not continuous throughout the year; but whenever proper occasions arose the land had been used in this way by the different parties. The defendant No. 1 apparently during the absence of the male plaintiff in Calcutta representing himself as being anxious to foster the religious life of the inhabitants of the locality approached a religious minded person and asked him to advance him money as a gift for the purpose of erecting a building in which this religious minded person was told that all the inhabitants of the locality might go to perform their worship. Apparently, this religious minded gentleman was deceived by the first defendant because the first defendant instead of erecting this building for the benefit of the public at large erected it, as he says, for his own purpose. The learned Judge of the lower Appellate Court, has directed that the plaintiffs should have joint use of this building with the defendants. The building, as it appears, is going to be used by the defendants for lodging their guests and as the Judge points out, there is no reason why the guests of the plaintiffs should not be lodged there also along with those of the defendants. It is quite true that the use of the building would be substantially different to, that for which the person who gave the money to erect it thought that it would be used. That is a matter for that gentleman to settle with the defendant No. 1, if he thinks it worthwhile to settle. We have nothing to do with that. The point that the learned Judge thought is that this is not an ordinary case of a large portion of ijmali land of which either party would take one portion without injury to the other. This is a portion of land of which neither party could have exclusive use, without doing substantial injury to the other. This piece of land has for many years been used by the different members of the family on different occasions. The learned Subordinate Judge has come to the conclusion, as far as I can gather, that the strict right of the plaintiffs would be to have the building demolished and to have the place restored , to its original position as it was before the defendant No, 1 having deceived the gentleman with the religious mind and during the absence of the male plaintiff in Calcutta put up this building for the accommodation of his guests. That view I think is right. If the building be removed, there is no doubt that the position of the defendant No. 1 would be the same as it was before he approached this gentleman who gave the money to erect this building for the benefit of the public of the neighbourhood. However, the lower Appellate Court has awarded to the plaintiffs joint possession of the building with the defendants. I see no reason to differ from the conclusion arrived at by the learned Judge of the lower Appellate Court. The present appeal fails and must be dismissed with costs.
2. I agree.