JUDGMENT

Dalal, J C - The plaintiff Saraswati Devi sued for the possession of two houses on the ground that she was auction-purchaser and the defendant was a trespasser, who had recently re-built one of the houses in spite of her protest. The Court of first instance held that the defendant was owner of half the property and gave the plaintiff a decree for joint possession to the extent of one-half, but on condition of her paying Rs. 250 to the defendant, that is, half the cost of the construction made by the defendant. In appeal by the plaintiff the learned Additional Subordinate Judge of Fyzabad deleted from the decree the order for the payment of Rs. 250.

2. The defendant has in consequence come here in second appeal.

3. I think that the order of the Trial Court was equitable. The plaintiff's own witnesses stated that the defendant had spent Rs. 500 in re-building one of the two houses. The plaintiff did not at the first opportunity prevent the defendant from making the construction. The construction is not of such a nature as to raise a presumption that the defendant made it in order to deprive the plaintiff of her share of the property.

4. When one of several co-sharers reconstructs joint property without protest from other co-sharers it is equitable that when the other co-sharers demand their share of the property they should be called upon to defray the proportionate expenses of the new construction. The argument of the lower Appellate Court has no force that the defendant never demanded proportionate payment for the construction. The defendant specifically mentioned that he had spent Rs. 700 in making the constructions, and there was no necessity for him to raise that plea in the written statement if he did not desire repayment of a portion of the expense in case of a portion of the property being decreed to the plaintiff. It is in evidence that only one house is reconstructed.

5. I, therefore, decree to the plaintiff joint possession to the extent of one-half of the house which has not been altered and joint possession to the extent of one-half in the other house on payment by her to the defendant of Rs. 250. The plaintiff shall pay costs of this Court and of the lower Appellate Court.