Radhey Shyam and Ors. vs Uma Shanker & Ors.

R.K. Mahajan, J.—This is a second appeal preferred against the Judgment and decree dated 16121983 passed by Sri D. N. Shukla, 1st Additional District Judge, Allahabad dismissing Civil Appeal No. 6 of 1982 and thereby upholding the judgment and decree dated 18111981 passed by Sri Jagdisfawar Singh, Vlth Additional Munsif, Allahabad where by the decreed original Suit No. 282 of 1978, Shiv Manual & others v. Ram Pratap & others. The trial Court granted the permanent injunction in favour of plaintiff respondents whereby the order for demolition of construction was also made and the defendantappellants were restrained from making any construction in future.

The plaintiffrespondents 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 theplaintiffs is that the defendants raised construction on a portion towards the road side despite the Court''s prohibitory orders.

The plea of the defendantappellants 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 1/6th share while the remaining 1/6th 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 gave 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 defendantappellants, 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 has major share to the extent of 2/3rd and the defendants 1 and 2 had only 1/6th share while the remaining 1/6th 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 northeastern 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 plaintiffrespondents in the revenue record.

Sri 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 plaintiffrespondents, 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 defendantappellants was not good deliberately defiant, and, therefore, they deserve no sympathy. He further submitted that the contesting defendantrespondents 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:

"3. 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 cotenureholders alongwith 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. Cosharer can usrup a best piece of land without the consent of other cosharers or partition and build a building to the prejudice of the rights of other cosharers. If it is allowed to be done, then the other co sharers be put to disadvantage. The conduct of appellants was also not bonafide 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 coowner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other coowners. The remedy of a coowner 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 as the case where a coowner 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 cosharers 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 circumstances of a building being erected by a joint owner of land without the permission of his coowners, and even in spite of their protect, 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 enquiry could not remedy in a suit for partition of the joint land."

The next Allahabad authority referred to the Bench was 32 Ind. Cas 690 (AIR 1916 All. 322). Walsh J., held that in a suit for injunction against a cosharer 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 18 All. 115, and though that the decision of Mahmood, J. in ILR 9 All 661, should be taken to have been definitely overruled.

In AIR 1925 All 700, a learned Single Judge doubted the correctness of the view expressed in the decision of Mahmood, J. in ILR 9 All 661, and preferred the view taken in other Allahabad cases which have been mentioned above holding that a cosharer had no right to build on what was joint land without the consent of the obters and if he did so, the others could sue for demolition of the building.

A Full Bench of Allahabad High Court in AIR 1951 All 199, 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 thepucca constructions. The lower appellate Court dismissed the relief for demolition.

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

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

(2) Possession of the joint property one coowner is in the eye 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 coowner 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 coowner must not only be exclusive but also hostile to the knowledge of the other, as, when a coowner openly asserts his own title and denies that of the other.

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

(6) Every coowner has a right to use joint property in a husband like manner not inconsistent with similar rights of other coowners.

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

(8) The remedy of a coowner 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 coowner sets up an exclusive title in himself.

(9) Where a portion of the joint property is, by common consent of the coowners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a coowner; 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.

If in spite of protest by one coowner, another coowner raises a building on a portion of joint land, not exceeding his own share therein, the aggrieved coowner cannot obtain a decree for demolition of that building without providing special damage or substantial injury to him unless the other coowner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other coowners.

The above rulings and the propositions referred to above, are extracted from the case of Sant Ram v. Daya Ram (Tek Chand, J.) reported in AIR Punjab 525.

The defendants have not come with clean hands and the concurrent findings recorded by the Courts below on the basis of possession, title and defendant 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 no tenable as the sale was made after the closer of the consolidation proceedigns 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 finding 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 thecosts.