- (1.) D. K. Seth, J. This appeal is directed against the judgment and decree dated 14-11-1984 passed by the Learned III Ad ditional District Judge. Azamgarh in Civil Appeal No. 136 of 1983 reversing the judg ment and decree dated 26-3-1983 passed by the learned Munsif, Mohammadabad Gohna, Azamgarh in the original suit No. 767 of 1981 partly allowing the appeal and decreeing the suit for permanent injunc tion restraining the defendants permanent ly from interfering in the possession of the plaintiffs in respect of the land shown by letters 'ka Kha Ta Tha' in map 15-A which was made part of the decree.
(2.) THE plaintiff-respondents had filed the suit for permanent injunction against the defendants on the ground that by vir tue of partition between the ancestors, the parties were occupying different part of the property and had constructed their respective houses thereon. In between the two houses the land was claimed as Sehan, Courtyard with a Thatched hut of the plaintiffs' house, which was encroached by the defendants by building cattle troughs for which the prayer for permanent injunction as well as man datory injunction for removing the cattle troughs were prayed for. THE defendants' case was that the father of the plaintiffs had constructed a new house on the North of the ancestral' house which was presently occupied by the plaintiffs and that there was a house of one Laxmidas to the South of the house of the plaintiffs and the ances tors of the defendants were desciple of Laxmidas and Laxmidas had given the said house to Someshwar Pandey vide a deed on 5-8-1907 and that the father of the plain tiffs had relinquished half of the house in favour of Ram Autar Pandey and since then the defendants are in exclusive pos session of the land 'ka Kha Ga Gha' right from the time of Rajaram and Ram Autar and that they had planted trees put thatch and constructed cattle throughs long before in 1981 and that the said land is settled in favour of the defendants under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act, therefore, they had denied the right of the plaintiffs. The trial court had dismissed the suit by its judgment and decree da ted 26-3-1983. Aggrieved the plaintiff-respondents preferred the civil appeal No. 136 of 1983 which was partly allowed decreeing the suit in part with regard to the permanent injunction in respect of the land shown by letters 'ka Kha Ta Tha'. Learned counsel for the appellant Mr. U. K. Misra contends that the finding of facts that has been concurrently found to the extent that the plaintiffs have failed to prove partition, therefore, the property is a joint property. If it is so, in that event the plaintiffs and defendants are co-sharer, therefore, no suit for injunction can be maintained by one co-sharer against another co-sharer in respect of joint property in respect of which both parties have right in every inch of the property. According to him they can file suit for partition and not for injunction, therefore, the judgment of the appellate court cannot be sustained and the suit has to be dismissed. He has further contended that there was no pleading in the plaint with regard to the exclusive possession in respect of the property and as such assuming, but still then no suit for injunction could be maintained against the defendants who are co- sharer of the properly. He had relied on different judgments which may be referred to at appropriate stage.
(3.) MR. Faujdar Rai, learned counsel for the plaintiff-respondents on the other hand had filed a cross- objection. In the said cross- objection he had challenged certain finding of facts as against the plain tiffs. But at the very outset MR. Faujdar Rai has submitted that he is not processing his cross-objection at this stage. In such cir cumstance the cross-objection is dis missed as not pressed. Relying on the finding of facts ar rived at by the court below Mr. Rai con tends that since these are finding of facts this court sitting in Second Appeal cannot enter into these questions. Now on the basis of the admitted facts as has been found by the court below according to him even if the partition has been disbelieved but the court has found possession of the parties as has been found in respect of the property to which the relief was confined. Therefore, according to him if it appears that parties are in exclusive possession even though t here may not be any partition still then they can protect their exclusive possession against the other is from being deprived of such possession. According to him that on the finding severance is an admitted position. The defendants have themselves pleaded that they have separate house and the dispute is for the land which is in between the house. It is also found that the trees existing on the land were planted by the plaintiffs and thus on the basis of such pos session there appears to be severance. Even though there may not be partition but severance in the family and separate posses sion of the parties results into exclusive possession which is little less than parti tion between them who are the members of the family by metes and bounds. As such one is entitled to protect his possession and a suit for injunction is very much main tainable. He also contends that the defen dants himself having claimed title on the basis of Section 9 of the U. P. Z. A and L. R. Act in respect of the property as an absolute owne:; he is precluded and estopped from claiming joint possession and as such it is to be treated as exclusive possession and a suit for injunction can very well be maintained. On these grounds he prays that appeal should be dismissed.;