Badhey Shyam and Others vs Uma Shanker and Others

R.K. Mahajan, J.—This is a second appeal preferred against the judgment and decree dated 16.12.1983 passed by Sri D. N. Shukla, Ist Additional District Judge, Allahabad dismissing Civil Appeal No. 6 of 1982 and thereby upholding the judgment and decree dated 18.11.1981 passed by Sri Jagdishwar Singh, VIth Additional Munsif, Allahabad whereby he decreed original Suit No. 282 of 1978 Shiv Mangal and Ors. v. Ram Pratap and Ors. The trial court granted the permanent injunction in favour of Plaintiff-Respondents whereby the order for demolition of construction was also made and the Defendant-Appellants were restrained from making any construction in future.

The Plaintiff-Respondents filed a suit in the trial court on the main allegations that the Plaintiffs along with Defendants 1 and 2 were Bhumidhars of grove in plot No. 150 area 12 biswa in village Bikapur. The grievance of the Plaintiffs is that the Defendants raised construction on a portion towards the road side despite the court''s prohibitory orders.

The plea of the Defendant-Appellants is that the Plaintiffs have no concern with the land in dispute and the land belonged to them. One Amar Jeet Singh, Chandra Bhan had built a house after purchasing two biswas land from Defendants 1 and 2.

The trial court after holding the trial gave a finding that the Plaintiffs 1 and 2 had one half share in plot No. 150 while Plaintiff No. 3 had l/6th share while the remaining l/6th share was held by Amar Jeet, Chandra Bhan under a sale-deed, while the Defendant No. 3 had no share. It was also held by the trial court that Amar Jeet and Chandra Bhan had constructed a hotel on the northeastern portion of the plot and the rest of the land was in possession of the Plaintiffs. It was also held by the trial court that the construction was not four years old but it was constructed just one or two days earlier when the suit was filed and was completed during the pendency of the suit. The trial court has also given a finding that the suit was maintainable and it is not barred by limitation. On these findings, the suit was decreed by the trial court.

On an appeal preferred by the Defendant-Appellants, the lower appellate court also gave a finding to the effect that the construction was started Just one or two days earlier before the filing of suit and it was done despite the temporary injunction of the trial court and justified the order passed for demolition. It was also held that the Plaintiffs had major share to the extent of 2/3rd and the Defendants 1 and 2 had only l/6th share while the remaining l/6th share was in possession of Amar Jeet and Chandra Bhan. It was also held by the lower appellate court that without the consent of the Plaintiffs, the construction could not be made towards north-eastern side which is best piece of land. On these findings, the lower appellate court has also dismissed the appeal.

I have heard the learned counsel for the parties at substantial length. It has been submitted by the learned counsel for the Appellants that the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act. The learned counsel further submitted that there is no order showing the ownership of the Plaintiff-Respondents in the revenue record.

Shri S. A. Gilani, learned counsel for the Respondents has submitted that since both the courts below have recorded concurrent findings of fact regarding the possession and ownership of the Plaintiff-Respondents, in the second appeal, interference by this Court is not required. He further justified the demolition order on the ground that the conduct of the Defendant-Appellants was not good, deliberately defiant, and, therefore, they deserve no sympathy. He further submitted that the contesting Defendant-Respondents had sold the entire share to Amar Jeet and Chandra Bhan and as such they have no right to contest the suit. He further submitted that the applicability of Section 49 of the U.P. C. H. Act is not attracted.

The appeal was admitted only on ground No. 3. treating the same as substantial question of law which is quoted as under:

Because on the facts and circumstances of the case, the Plaintiffs were not entitled to a decree for demolition of construction in suit, even if they are held to be co-tenure-holders along with the Appellants.

After hearing the learned counsel for the parties, I am of the view that since the Plaintiffs are owners of the major portion of plot No. 1150 and the sale was made by Defendants 1 and 2 of their shares to the extent of 4 biswas in favour of Amar Jeet and Chandra Bhan (two biswas each). It is settled law that every co-sharer has Joint ownership as well as possession in a Joint property unless it is partitioned. No co-sharer can usurp a best piece of land without the consent of other co-sharers or partition and build a building to the prejudice of the rights of other co-sharers. If it is allowed to be done, then the other co-sharers be put to disadvantage. The conduct of Appellants was also not bona fide rather they started the building just before the filing of suit and the construction continued despite the stay order. It may be pointed out that every co-owner has a right to use the Joint property in a husband like manner not inconsistent with similar rights of other co-owners. The remedy of a co-owner not in possession, or not in a possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.

It may also be pointed out that in ILR 8 Cal 708, a Bench of Calcutta High Court said that there was a considerable difference between a case in which the other co-sharers acting with diligent watchfulness of their rights, seek by an injunction to prevent the erection of permanent building; and a case in which after a permanent building has been erected at considerable expense, he seeks to have the building removed. In such a case, the settled principle was that though the court had a discretion to interfere and direct the removal of the building, the discretion was not to be exercised necessarily in every case and should not be exercised unless the Plaintiff was able to show that injury had accrued to him by reason of the erection of the building; and perhaps further, that he took reasonable steps in time to prevent the erection. In ILR 9 All 661, Mahmood, J., said that "the mere circumstance of a building being erected by a joint owner of land without the permission of his co-owners, and even in spite of their protest, is not sufficient to entitle such co-owners to obtain the demolition of such building unless they can show that the building has caused such material and substantial injury as a Court of equity could not remedy in a suit for partition of the joint land."

The next Allahabad authority referred to by the Bench was 32 IC 690 : Ghasitu and Others Vs. Sodhan Singh, Walsh, J., held that in a suit for injunction against a co-sharer for wrongful use of a joint land, it was not necessary to prove that the Plaintiff was suffering or was likely to suffer substantial injury by such user and a Joint owner had no right to deal with the Joint property without the consent of the other joint owners. The learned Judge followed the Division Bench decision in ILR All 115, and thought that the decision of Mahmood, J., in ILR All 661, should be taken to have been definitely overruled.

In Ram Lal and Another Vs. Muhammad Amir Mustafa Khan and Others, a learned single Judge doubted the correctness of the view expressed in the decision of Mahmood, J., in ILR All 661, and preferred the view taken in other Allahabad cases which have been mentioned above holding that a co-sharer had no right to build on what was Joint land without the consent of the others and if he did so, the others could sue for demolition of the building.

A Full Bench of Allahabad High Court in Chhedi Lal and Another Vs. Chhotey Lal, , reviewed the previous decisions of that Court and also of other High Courts. In that case, certain constructions had been started by the Defendant on the Joint land to which the Plaintiffs had protested but the protest went unheeded. The Plaintiffs, then challenged the risk of Defendant to construct on joint land, and the trial court decreed the suit for Joint possession by demolition of the pucca constructions. The lower appellate court dismissed the relief for demolition.

The weight of the authorities and the principles which have been discussed above give rise to the following propositions:

(1) A co-owner has an interest in the whole property and also in every parcel of it.

(2) Possession of the joint property by one co-owner is in the eyes of law, possession of all even if all but one are actually out of possession.

(3) A mere occupation of a larger portion or even of an entire Joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

(4) The above rule admits of an exception, when there is ouster of a co-owner by another. But in order to negative the presumption of Joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.

(5) Passage of time does not extinguish the right of co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.

(6) Every co-owner has a right to use the Joint property in a husbandlike manner not inconsistent with similar rights of other co-owners.

(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.

(8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual Joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.

(9) Where a portion of the joint properly is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.

(10) If in spite of protest by one co-owner, another co-owner raises a building on a portion of joint land, not exceeding his own share therein, the aggrieved co-owner cannot obtain a decree for demolition of that building without proving special damage or substantial injury to him unless the other co-owner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other co-owners. (The above rulings and the propositions referred to above, are extracted from the case of Sort Ram v. Daya Ram [Tek Chand, J.) reported in AIR P&H5251.

The Defendants have not come with clean hands and the concurrent findings recorded by the courts below on the basis of possession, title and Defendants attitude in ignoring the order, deserve to be maintained.

The submission regarding the applicability of Section 49 of the U.P. Consolidation of Holdings Act is also not tenable as the sale was made after the closure of the consolidation proceedings and moreover, no question of law was allowed to be framed at the time of admission otherwise the findings also need not to be disturbed.

After having perused the entire record carefully and having gone through the impugned orders, I am of the considered view that the concurrent findings of fact recorded by both the courts below are based on reasonable approach and appreciation of law as well as on facts and the same are not inherently wrong.

In the result, the appeal fails and is dismissed with costs.