A co-owner in exclusive possession of a portion of joint land under an arrangement with other co-owners cannot change the user of the land to the detriment of the other co-owners.

( 1 ) THIS second appeal has been filed by Pirthi Singh and others against the judgment and decree of the Senior Subordinate Judge, Hoshiarpur, date 28th November 1963, in Civil Appeal No. 197 of 1963 on his file, whereby the leartied Senior Supordinate Judge confimed the judgment and decree of the Subordinate Judge, First Calss, Una, dated, 19th August, 1963, passed in Civil Suit No. 326 of 1962.

( 2 ) THE aforesaid suit was filed by the appellants herein for a permanent injunction restraining the respondents herein from raising any construction in the suit land of the extent of 2 Kanals and 2 Marlas, situate in village Basoli, Tehsil Una. The case of the appellants- plaintiffs was that said land was jointly owned and possessed by them and respondents Nos. 1 and 2, that the slid respondents Nos. 1 and 2 had exchanged portions of the said land with respondents Nos 3 to 6, that the respondents had no right to raise any construction on the suit land, and that, therefore, they should be restrained from raising any construction. The suit land comprised there fields, Nos. 5461/251, 5878/250 and 5898/250. The case of the respondents defendants was that the said fields Nos. 5878/250 and 5398/250 were not joint fields, , that the said fields were gifted to respondents Nos. 1 and 2 by their father, that the field No 5461/251 however, was jointly owned by the appellant No. 1 and respondents Nos. 1 and 2, that by agreement among the parties portions of the field No. 5461/251 have been in exclusive possession of appellant No. 1, Pirthi Singh, and respondents 1 and 2, that respondents I and 2 had exchanged their portion in the said field with respondents Nos. 3 to 6, that they had a right to build on the portions in their possession, and that the appellants-plaintiffs, if at all, could only file a suit for partition and could not sue for an injunction.

( 3 ) THE trial Court, by judgment, dated 19th August, 1963, held that the portions of field No. 5878/250 were gifted separately to each of the appellants and respondents Nos 1 and 2, and respondent No. 1 being a donee from his father could use the portion in his possession in any manner he liked As regards field No. 5898/250 and field No. 5461/251, the trial Court took the view that the said fields were joint fields and the parties were co-owners of the same, that the raising of structures by respondents Nos. 1 and 2 or their transferees does not in any way adversely affect the rights of the appellants, the co-owners, that the possession of the respondents was subject to partition and until the partition is effected the other co-owners could not disturb the possession and that the appellants-plaintiffs could not merely sue for an injuction restraining respondents Nos. 1 and 2 from raising any construction on the portions of the fields in their possession. In the result, the trial Court dismissed the suit.

( 4 ) AGAINST that judgment and decree, the appellants herein prefer red an appeal. Civil Appeal No. 197 of 1963, to the Court of the Senior Subordinate Judge, Hoshiarpur. The learned Senior Subordinate Judge in his judgment, dated 28th November, 1963, stated that the appellants plaintiffs had given up their claim in the suit with regard to khasra No 5898/250 min as, according to respondents Nos. 1 and. 2,it was not exchanged and the said respondents had no intention to raise any consitraction upon it As regards field No 5898/250, the learned Senior Suboninate Judge held that as the said field was gifted to respondents Nos. 1 and 2 by their father, they and their transterees. could raise a constiuotion thereon. As regards the field No. 5461/251, the learned Senis Subordinate Judg found that the said field, was a joint field, that under an arrangement between the parties, appellant No. 1, Pirthi Singh , as respondents. Nos. 1 and 2, have been in exclusive possession of 4 Marlas each, that the 8 Marias which were in the exclusive possession of respon dents Nos. 1 and 2 wer