A co-sharer cannot claim partition of a house built by another co-sharer on ancestral land if the house was constructed with the knowledge of the plaintiff and the plaintiff did not object to the construction.

1. These appeals are brought by defendants 1 to 3 and by defendants 12 to 14 against a preliminary decree granted in a partition suit.

2. The land in dispute comprises plot 1863, area 18 dhurs and 12 dhurkis, and plot 1869, area 1 katha and 12 dhurs, located in the town of Buxar. The plaintiffs claimed that the land was ancestral and they were entitled to be granted partition of eight annas share therein. Defendants 1 to 3 contested the suit on the allegation that plot 1869 was acquired by Gaya Master from whom they had purchased the plots by an unregistered document. It was alleged on behalf of these defendants that on a portion of the plot they had erected a house to the knowledge of the plaintiffs and in consequence they had acquired title by ouster. A similar claim was advanced on behalf of defendants 12 to 14 who contested the suit so far as plot 1863 was concerned. They alleged that they had purchased the plot from. Gaya Master by virtue of an oral sale and subsequently built a house thereon. An alternative claim of ouster was also pleaded on their behalf.

Upon a consideration of oral and documentary evidence the Munsif found that both the plots were joint family properties and that the story of the defendants that they had made a purchase of the plots was not acceptable. The Munsif also held that the defendants had not established the plea of ouster with respect to either of the plots in question. The Munsif therefore granted a decree to the plaintiffs for partition of eight annas share of the two plots and directed that the

"commissioner will have due regard in effecting partition to the convenience of the parties and that he may allow compensation in money to others if he thinks it advisable not to partition the house."

The decision of the Munsif was affirmed by the learned Subordinate Judge in appeal. But in the operative portion of the judgment the Subordinate Judge observed : "As the defendants have made constructions, so naturally they would be entitled to compensation or such relief at the time of actual partition and. this is a matter which has to be determined at the time of partition."

3. The main question argued is that upon the findings reached there ought to be a direction in the decree that the house erected should not be partitioned but that the two plots should be assessed at a reasonable price and that the plaintiffs ought to be granted their share of the value so assessed which is to be paid by the defendants.

4. In approaching this question it is necessary to bear in mind two important principles. In the first place, if one of the cosharers intends to appropriate to his own use a portion of the joint land and takes up a portion of such land and builds a pucca house thereon he ought not to be treated as a trespasser. Secondly, if a co-sharer seeing one of his co-sharers erect a house on a piece of joint land stands by and makes no objection, a Court of Equity will presume his acquiescence to the erection of the building and will not order demolition of the pucca building on the joint land unless it is shown that injury would accrue to the co-sharer plaintiff and also before the building was started objection was taken to its erection. The principles were clearly enunciated by Mahmood J. in PARAS RAM V/s. SHERJIT, 9 All 661, in which the learned Judge said that the mere fact 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 could not be remedied in a suit for partition of the joint land.

To a similar effect is the decision of ANANDACHANDRA SEN V. PARBATI NATH SEN, 4 Cal LJ 198 wherein the eminent Judge Sir Asutosh Mookerjee observed that acquiescence is quiescence under such circumstances as that assent may be reasonably inferred from it and i