JUDGMENT :- The facts found by the courts below are that one Shanker had four sons, namely, Prabhoo, Gayadin, Surajdin and Ram Din (who died issueless). Prabhoo, the defendant appellant as mentioned earlier is the son of Shanker whereas the sons of Suraj Din and Gaya Din sons of Shanker are the plaintiff-respondents.

2. The plot in dispute has been found to be the joint property of the sons and grandsons of Shanker.

3. According to the plaintiff-respondents case the defendant appellant had started making constructions on khata no. 59 area 42 bighas 15 biswas which is the joint property of the parties to the suit, without the consent of the plaintiff-respondents and despite their protests. According to them they lodged a report to the police when the defendant respondent started laying the foundations on 20-1-1960. Despite their protests when the defendants started making constructions on 1-2-66, the plaintiffs filed the suit on 4-2-1966 praying for a mandatory injunction for the removal of the constructions on the land in suit.

4. On 4-2-1966 an application was made on behalf of the plaintiff-respondents praying that an interim injunction should be issued restraining the defendants from proceeding further with the constructions, and they also prayed that a Commissioner be appointed to serve the injunction order on the defendant-appellants. It was also further prayed that the Commissioner should also report about the position of the constructions.

5. The interim injunction prayed for was granted and the defendant appellant was ordered to desist from making further constructions. The Commissioner was also directed to serve the defendant-appellant and to report about the situation of the constructions. It may be added that subsequently, the injunction order was modified to the extent that the defendant-appellant was permitted to thatch the uncovered constructions.

6. The Commissioner served the injunction order and also submitted his report. According to the report the constructions were about a month or 6 weeks old and the constructions were only half complete and that they had not been roofed either. They were also reported to be " kachcha" that is not made of bricks.

.7. The defendant appellant had set up title in himself which plea has been negatived by the courts below and it has been held that the property was joint property of the sons of Shanker. The defence plea further was that there were old constructions on the site where the new constructions stood and that they had fallen down and that the defendant-appellant was making reconstruction over the site of the fallen down constructions. This plea has also been found to be without any basis and the constructions have been held to be new.

8. The trial court found that the plaintiff-respondents had their house immediately adjacent to the place where the defendant appellant was making his constructions on the joint land of the parties. It further held that as the plaintiff respondents house was adjacent to the area where the defendant appellant was making his constructions, this land was likely to go to the plaintiff-respondents share in the event of a partition of the land between the parties. It also observed that one of the accepted rules of partition is that when it comes to allotment of land, it should be allotted to a party which would be of maximum use to it considering other attendant circumstances. In these circumstances the trial court held that the plaintiff-respondent would suffer a loss which could not be compensated by allotment of any other portion of the land. The trial court also held that the plaintiff had filed the suit for injunction expeditiously without waiting for the constructions to be completed. Having recorded these findings the trial court decreed the suit for removal of the constructions.

9. The defendant-appellant filed an appeal. The lower appellate court was of the view that as the constructions were made over joint land and the suit had been file

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