If, in spite of protests 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.

Tek Chand, J.

1. On a reference made by P. C. Pandit J. this case has been placed before this Bench for disposal. The question of law which has been referred to us is in the following terms :

"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 can the aggrieved co-owner obtain a decree for demolition of that building without proving special damage or substantial injury to him?"

As the whole case is before us for decision, the facts of this case may be stated in detail.

2 The following pedigree-table will show the relationship of the parties;

NAGNINA RAM

__________________________________|_________________________

| | | |

Daya Ram Sant Ram Gonda Ram Narain Singh

plaintiff deft. No. 1 | |

_____________________________|____ Gori

| | deft. No. 2

Siri Ram Singh Bansi Lal

deft. No. 3 deft. No. 4

In the Court of first instance Daya Ram plaintiff instituted a suit against the defendants alleging that the site shown as Alif Be Jeem Dal in red in the plan attached to the plaint was joint of the parties and was part of Khasra No. 11340/2066 and was in their joint possession. The parties are descendants of Nagina Ram who was father of plaintiff and of defendant No. 1 and grandfather of defendants Nos. 2, 3 and 4. It was averred in the plaint that agricultural land and abadi area belonging to the parties was joint though for the sake of Convenience their cultivation and residence were separate. The area in dispute is taur, a vacant plot, measuring 12 x l2 1/2 and is claimed by the plaintiff to be joint of the Parties.

In the plaint, which is dated 19th March, 1958, and which was presented on 22nd March, 1958, it was alleged that yesterday, that is, on 18th March, 1958, the defendants dug foundations and when the plaintiff objected they threatened to use force. In 1954 also the defendants wanted to construct on this vacant site and the plaintiff served a registered notice asking the defendants not to construct any building without the plaintiffs consent and to this Sant Ram defendant replied that he would obtain the plaintiffs Consent beforehand. The plaintiff maintained that the defendants could not construct on the joint property without his consent, and on the above facts, the plaintiff prayed that the foundations which were dug under threat of force should be filled.

It was also prayed that if during the pendency of the suit, the defendants complete their building, the same should be ordered to be demolished and they should further be restrained from Constructing on the joint land in future. On the same day an application was made praying that ft temporary injunction should be issued restraining the defendants from constructing on the site pendente lite. On 22nd March, 1958. the Court of first instance issued temporary injunction enjoining the defendants from making further construction till disposal of the application. The defendants did not file a return and did not apply for vacation of the temporary injunction granted.

3. On 24th April, 1958, written statement was presented by the defendants alleging that the site in suit was not joint of the parties. They said, that over 25 years ago a private partition took place and this area fell exclusively to the defendants share and they had been in possession ever since. The private partition was by metes and bounds and each party had been in separate possession of its respective portions for over 25 years. In March, 1958. a portion of the thatched roof had fallen down in a storm and it was this thatched roof which was repaired by the defendants and no new structure was raised by them though they were entitl