JUDGMENT

Radha Krishna, J - This is the plaintiff's second appeal. The dispute in this case relates to a village site demarcated by plot No. 2738 situated in mahal Dilawar Jot, village Utraula, District Gonda. The plaintiff-appellant is owner of this mahal to the extent of one-half and respondents 1 to 3 own the other half. Defendants 4 and 5 started constructing houses on the said plot whereupon the plaintiff, who is the owner of the half share in it as stated above, brought the present suit for joint possession thereof and for a perpetual injunction against the defendants restraining them from constructing any building thereon. The defences put forward by the defendants were, firstly that the house was being constructed on the site of a very old house and further that defendants 4 and 5 were constructing the house with the permission of defendants 1 to 3, and as no injury was involved thereby to the plaintiff, he was not entitled to sue.

2. The trial Court held that there was no old house standing on the plot in dispute and further that the building would not adversely affect the plaintiff's interest. In the result, it dismissed the suit holding that the plaintiff would suffer no loss if the building was completed, and if it was demolished defendants 4 and 5 would suffer some loss. The learned Additional Civil Judge of Gonda on appeal by the plaintiff took the same view of law and held that the balance of convenience was with the respondents and therefore dismissed the appeal. No other plea seems to have been considered by or pressed before the lower Appellate Court. The plaintiff has come up in second appeal, and the learned Counsel for the appellant has argued that no co-sharer can appropriate fro his own exclusive use any specific plot of joint land or let it out to a tenant of his own for building purposes without the consent of other cosharers and the non-consenting cosharer has a right to question the act of such a cosharer with-out showing any special inconvenience or injury to himself. In my opinion, the contention of the learned Counsel for the appellant must prevail. It has been well settled law that one of several joint owners of land is not entitled to erect a building upon the joint property without the consent of other cosharers notwithstanding that the erection of that building may cause no direct loss to the other joint owners. If he cannot build himself it follows that he cannot let out any portion 6f joint land to his exclusive riyaya for the purpose of building. The following cases, as well as many others, support the view that I have expressed above: Najju Khan v. Imtiazuddin (1895) 18 All 115 and Ram Lall v. Muhammad Amir Mustafa Khan AIR 1925 All 700. The lower Appellate Court has relied upon a decision of this Court in Parmai v. Mohan (1926) 13 AIR Oudh 412 and has quoted the following passage therefrom:

The law on the point, so far as the Province of Oudh is concerned, was laid down by Spankie A.J.C., so far back as the year 1894 in Tolok v. Ramadhin (1894) S.C. No. 270. In that case Mr. Spankie laid down the rule that where a co-owner of joint land sued to have a permanent building erected on the land by another co-owner removed, the Court should weigh the amount of substantial mischief done to the plaintiff, and compare it with that which would be inflicted upon the defendant, and if the balance of the convenience is in favour of the plaintiff it should insist upon the removal of the building. If however the balance of the convenience lay on the side of the defendant the Court should leave the plaintiff to his remedy by partition. This case was cited with approval by Chamier A.J.C., in Kallu v. Gaya Din (1904) 7 OC 362. In this case the plaintiff sued some of his co-sharers for possession of a piece of shamilat land and for demolition of a chaupal erected thereon by them. It was found that by the construction of the chaupal the road had been blocked up to some extent and on that view of the case the