JUDGMENT

Hilton, J. - In village No. 62 of tahsil Palampur in the Kangra district there is a bed of a stream described in the revenue papers as ghairmumkin khadd which is common land of the village. The defendant Ram Singh, who is one of the village proprietors, has reclaimed seven marlas of this land adjacent to his own proprietary land and has put it under cultivation and has built a wall alongside the plot thus reclaimed. The two plaintiffs, who are also proprietors in the village, after the unsuccessful attempt to persuade the revenue authorities to oust Ram Singh from this plot presented a plaint on 29th August 1930, asking for relief by ejectment of Ram Singh and an injunction against repetition of the encroachment. The suit was dismissed by the trial Judge but the learned Senior Subordinate Judge on appeal by the plain. tiffs has decreed the defendant's ejectment and the defendant has now preferred this second appeal. It was found by the trial Judge and has not been disputed here that the defendant is in possession out of common land of the village of much less than the area that would correspond to his share in the event of a partition. A question was raised before me whether the plaintiffs had acquiesced in the encroachment but this point is concluded by a finding of fact of the lower appellate Court to the effect that the defendant openly occupied the disputed area in 1928 or only one year before the plaintiffs raised the dispute in 1929. There was therefore no acquiescence on their part.

2. The main subject of debate in this second appeal has been whether, in the circumstances stated, the plaintiffs are entitled to have the defendant ejected. Mr. Jagan Nath for the defendant-appellant has contended for the proposition that the defendant cannot be ousted unless the plaintiffs can show that this possession has caused than such material and substantial injury as could not be remedied on a partition of the joint land. Mr. Mahr Chand Mahajan for the plaintiffs respondents has argued on the other hand that the stream bed is not partible and that in any case the plaintiffs are not obliged to resort to partition nor to prove material and substantial injury as a condition of ejecting the defendant. He has contended that ejectment is the rule in cases where the encroaching party has not erected expensive buildings and where the challenging party has not been guilty of laches. The authorities relied on by Mr. Jagan Nath include Watson and Co v. Ram Chand Dutt (1893) 18 Cal 10, Lachmeshwar Singh v. Manowar Hussain (1892) 19 Cal 253, Majju v. Teja Singh AIR 1918 Lah 51, Lekha v. Hanwanta AIR 1918 Lah 130, Kalar Singh v. Kahana 60 IndCas 531, Ahmed Gul v. Rahim Khan AIR 1926 Lah 52 and Radha Kant Pal v. Monomohinee Pal . Mr. Mehr Chand Mahajan has cited Manji v. Gulam Mahomed AIR 1920 Lah 34, Manji v. Gulam Mahomed AIR 1921 Lah 157, Bishnu v. Sapuran Singh AIR 1925 Lah 287, Kunj Lal v. Ramji Lal AIR 1927 Lah 416 and G.A. 2788 of 1917 quoted in Manji v. Gulam Mahomed AIR 1920 Lah 34.

3. I may say at once that the wajib-ul-arz of the village does not appear to support the view that the streambed is not partible. It provides that the pasture land and the resting place of cattle should not be cultivated but otherwise it contemplates the partition of the culturable portions of the shamilat. I do not think that the wajib-ul-arz can be read as forbidding either the cultivation or the partition of the stream bed. The trial Judge who inspected the spot gave a finding that this land is not pasture land nor used as the resting place of cattle and the lower appellate Court did not dissent from this finding. While however the trial Judge thought that the defendant had performed a meritorious act in reclaiming for cultivation a part of this barren stream bed which otherwise would supply nothing but stones, the lower appellate Court was influenced by the consideration that

should the other cosharers also all do what the defendant has done the khadd