- (1.) This is a Plaintiff's appeal in a suit for partition and for demolition of certain constructions made by the Defendants on an open portion of the joint land. It arises on the following facts: Parties to this appeal belong to the same family. They own some joint land in which each of them is entitled to one half. A building was constructed by the Plaintiff on part of the joint land and it is in his occupation. The Defendants have also built their house adjoining that of the Plaintiff and they live in it. It appears that for some time past Hari Singh Defendant No. 2 had been living in some village other than Nibari where this land lies. He returned to Nibari a short while ago, and in 1947, when civil courts were closed for summer vacation, started making some constructions on that portion of joint land which was still unoccupied and was lying open. The Plaintiffs protested against this but, he would not listen. The matter was reported to the police and the police tried to stop Hari Singh, but he did not care. As soon as the civil courts opened after the vacation the Plaintiff instituted the suit which gave rise to this appeal. On 26-7-1947 a temporary injunction restraining the Defendants from making further constructions was issued and a commissioner was appointed to inspect the locality and make a report. The commissioner's report was that the constructions appeared to have been made during summer vacation when the civil courts were closed.
(2.) The Defendants pleaded that there had already been a partition of the joint land between the parties and hence no fresh suit for partition could lie. They further pleaded that the land on which constructions were made was allotted to the Defendants' share. This defence was found to be untrue. Accordingly having regard to the high-handedness of the Defendants the trial court ordered demolition of the constructions shown by letters A.B.C.D., on the commissioner's map, and passed a preliminary decree or partition. The learned Munsif held that the Plaintiff was entitled to a half share in the entire property and directed that, so far as possible, he should be allotted the northern portion and the Defendants the southern portion of the house-item No. 1 of the plaint.
(3.) The Defendants filed an appeal against this decision. The lower appellate court confirmed the finding of the trial court that the alleged previous partition of the joint property was not proved, and the Plaintiff was entitled to get a decree for partition of the residential house and the Sehn land. It further observed: "The parties do not want that the partition wall which already existed in the house should be disturbed. The Plaintiffs are in possession of the northern portion while the Defendants are in possession of the southern portion. The area of the Defendants Appellants share inside the residential house is much less than their share. Both the parties have rebuilt the portions which are in their possession and so no question of estimating the value of the materials would arise". It however set aside the order of the trial court directing; demolition of the constructions A.B.C.D. On the other hand it directed that the constructions made by the Defendants and the land underneath them shall be allotted to their Qura. It confirmed the preliminary decree for partition passed by the trial Court.;