A co-sharer in exclusive possession of joint land cannot build upon it without the consent of the other co-sharers, unless there is a mutual agreement permitting such construction or the land was intended to be used for building purposes.

( 1 ) THIS is a defendants appeal arising out of a suit for joint possession after demolition of certain constructions.

( 2 ) THE property in dispute is a portion of plot No. 1027. It is a part of Khewat No. 38 in village dara Rajpura, now included in the city of Saharanpur. Khewat No. 38 was owned by one kunwar Singh who had two sons, Nehal Singh and Shib Sahai. Nehal Singh died in the lifetime of Kunwar Singh leaving his son Harkesh Singh, plaintiff-respondent. Shib Sahai executed a will in favour of his three daughters-in-law and a daughters son, Joti Prasad in respect of the entire property left by Kunwar Singh. In 1923 Harkesh Singh plaintiff-respondent filed a suit for possession of a half share in the properties against Joti Prasad and the daughters-in-law of Shib sahai. Toe suit was ultimately decreed by this Court on 23-3-1927. Harkesh Singh obtained joint possession over the property in dispute. While the appeal was pending in this Court Khewat No. 38 was divided into six portions, namely, Khewat NOS. 38/1, 38/2, 38/3, 38/4, 38/5 and 38/6. Plot No. 1027 was sub-divided into four parts, Nos. 1027/1, 1027/2,1027/3 and 1027/4. We are concerned only with plots NOS. 1027/2 and 1027/4 in this appeal. On 23-10-1929 a portion of plot No. 1027/2 was sold by Joti Prasad to Darshan Lal, who was a benamidar for Puran Chand, defendant 3. On 6. 2-1932 a portion of plot no. 1027/4 was sold by Joti Prasad to Bishambhar das defendant 2.

( 3 ) THEN the plaintiff Harkesh Singh filed a suit for partition of shares in the revenue Court in 1933. It appears that during the pendency of this suit, defendants 2 and 3 started making constructions over the plots purchased by them. The plaintiff thereupon got an order of injunction issued restraining defendants 2 and 3 from, making any constructions over the plots in dispute. Ultimately, however, the partition proceedings became infructuous.

( 4 ) DEFENDANTS 2 and 3 applied to the Municipal Board for permission to make constructions upon the plots purchased by them. In the Municipal Board the plaintiffs filed objections to the permission being granted to the defendants. His objections were overrated and defendants 2 and 3 were allowed to make constractions prayed for. They completed their constructions in 1934. The plaintiff filed the suit which has given rise to this appeal in 1939 for demolition of the constructions made by defendants 2 and 3 and also by Dr. Kanhaiya Lal, with whose constructions we are not concerned in the present appeal.

( 5 ) THE defence to the suit inter alia was that Joti Prasad was in possession of the plots in suit with the consent of Harkesh Singh plaintiff and that, as such, he was entitled to sell them to defendants 2 and 3 and further that the suit for demolition was barred by the doctrine of acquiescence. The trial Court held that the plaintiff and Joti Prasad were in possession of separate plots by mutual agreement and that Joti Prasad was entitled to sell the portion of which he was in exclusive possession to the defendants. It also held that the plaintiff having delayed in filing the suit for about 5 years after the constructions had been completed, his suit was barred by the doctrine of acquiescence.

( 6 ) THERE was an appeal to the lower appellate Court. It was held by that Court that the doctrine of acquiescence did not apply inasmuch as the plaintiff had been objecting to the constructions from the very beginning. It allowed the appeal and decreed the plaintiffs suit for joint possession by demolition of the constructions as against defendants 2 and 3. It dismissed the suit as against dr. Kanhaiya Lal because it found that the suit against him was barred by acquiescence.

( 7 ) DEFENDANTS 2 and 3 have now come up in second appeal to this Court and it has been urged on their behalf that the relief for a mandatory injunction should not have been granted to the plaintiff. It has been pointed out that the plaintiff failed to take any steps for gettin