Even if partition is not proved but exclusive possession is proved, the suit for injunction is maintainable.

( 1 ) THIS appeal is directed against the judgment and decree dated 14. 11. 1984, passed by the learned IIIrd Additional District Judge, Azamgarh in Civil Appeal No. 136, of 1983, reversing the Judgment and decree dated 26. 3. 1983, passed by the learned Munslf, Moham-madabad gonna. Azamgarh in the Original Suit No. 767 of 1981, partly allowing the appeal and decreeing the suit for permanent injunction restraining the defendants permanently from interfering in the possession of the plaintiffs in respect of the land shown by letters ka, Kha, Ta, Tha in map 15a which was made part of the decree.

( 2 ) THE plaintiff-respondents had filed the suit for permanent injunction against the defendants on the ground that by virtue of partition between the ancestors, the parties were occupying different part of the property and had constructed their respective houses thereon in between the two houses, the land was claimed as Sehan, Courtyard with a thatched hut of the plaintiffs house, which was encroached by the defendants by building cattle troughs for which the prayer for permanent injunction as well as mandatory Injunction for removing the cattle troughs were prayed for. The defendants case was that the father of the plaintiffs had constructed a new house on the North of the ancestral house which was presently occupied by the plaintiffs and that there was a house of one Laxmidas to the South of the house of the plaintiffs and the ancestors of the defendants were disciple of Laxmidas and Laxmidas had given the said house to Someshwar pandey vide a. deed on 5. 8. 1907. and that the father of the plaintiffs had relinquished half of the house in favour of Ram Autar Pandey and since then the defendants are in exclusive possession of the land ka, Kha, Go, Gha right from the time of Rajaram and Ram Autar and that they had planted trees put thatch and constructed cattle troughs long before 1981 and that the said land is settled in favour of the defendants under Section 9 of the U. P. Zamindarl Abolition and Land reforms Act, therefore, they had denied the right of the plaintiffs.

( 3 ) THE trial court had dismissed the suit by its Judgment and decree dated 26. 3. 1983. Aggrieved the plaintiff-respondents preferred the Civil Appeal No. 136 of 1983, which was partly allowed decreeing the suit in part with regard to the permanent Injunction in respect of the land shown by letters ka, Kha, Ta, Tha.

( 4 ) LEARNED counsel for the appellant Mr. U. K. Misra contends that the finding of facts that has been concurrently found to the extent that the plaintiffs have failed to prove partition, therefore, the property is a joint property, if it is so, in that event the plaintiffs and defendants are co-sharer, therefore, no suit for injunction can be maintained by one co-sharer against another co-sharer in respect of joint property in respect of which both parties have right in every inch of the property. According to him, they can file suit for partition and not for injunction, therefore, the Judgment of the appellate court cannot be sustained and the suit has to be dismissed. He has further contended that there was no pleading in the plaint with regard to the exclusive possession in respect of the property and as such assuming, but not admitting, the plaintiffs exclusive possession still then no suit for injunction could be maintained against the defendants who are co-sharer of the property. He had relied on different judgments which may be referred to at appropriate stage.

( 5 ) MR. Faujdar Rai, learned counsel for the plaintiff-respondents on the other hand had filed a cross-objection, in the said cross-objection he had challenged certain finding of facts as against the plaintiffs. But at the very outset, Mr. Faujdar Rai has submitted that he is not processing his cross-objection at this stage- in such circumstance, the cross-objection is dismissed as not pressed.

( 6 ) RELYING on the finding of facts arrived at by the Court below, Mr. Rai