Smt. Idda And Others vs Smt. Madar Shah And Others

Hon''ble Sibghat Ullah Khan, J.—Heard Sri R.C. Singh, learned counsel for the appellants and Sri M.A. Qadeer, learned senior counsel for the respondents.

This is plaintiffs'' second appeal arising out of O.S. No.52 of 1961 which was decreed on 31.10.1962 by Munsif, Fatehpur for possession and demolition. Against the said judgment and decree, Civil Appeal No.146 of 1962 was filed which was dismissed. However the said judgment of the lower appellate court was set aside by the High Court in an earlier second appeal and matter was remanded to the lower appellate court for fresh decision. Thereafter lower appellate court/ District Judge, Fatehpur allowed the appeal on 10.04.1975 and suit for demolition was dismissed.

The parties are admittedly joint owners. The allegation made by the plaintiffs who are two sisters, that they and their brother defendant No.6 who is appellant No.3 in this second appeal were owners in possession to the extent of 1/4th share of the property in dispute was accepted by the contesting defendants. However the version that earlier partition had taken place and plaintiffs and defendant No.6 were owners of specific portion of property in dispute to the extent of 1/4th share was denied by the contesting defendants and was not accepted even by the trial court. Under issue No.6 it was specifically held by the trial court that

The land is proved to be joint between the parties.

However after two sentences it was observed as follows:

Obviously the land in suit is proved to be in the exclusive possession of the plaintiffs and defendant No.6.

Both the findings are squarely contrary to each other. Trial court further held that at the time of partition (in future) it would not be possible to suitably compensate the plaintiffs hence suit for demolition and possession was decreed.

A co-sharer, normally, cannot seek demolition of construction made by the other co-sharer. Possession of one co-sharer is possession of all other co-sharers. The plaintiffs should have better claimed partition. The question that what would be the position in future when partition suit is filed and final decree is prepared; whether constructed portion would be given to the co-sharer, who has made the construction or damages would be awarded to the other co-sharers or demolition would be ordered can be decided only when that stage comes. On enquiry from the court as to whether any party has till date filed suit for partition, learned counsel for both the parties state that they are not in a position to say anything in this regard. Suit was filed exactly 50 years before. This second appeal is pending for 37 years. If suit for partition has not yet been filed or if filed not finalised, there is no sense in deciding in anticipation and in advance as to whether demolition or allotment of the disputed constructions to the person who made them would be appropriate relief. This question can better be decided in the appropriate suit (for partition).

If there are two options; one is to direct demolition forthwith and the other is to direct demolition on some future date on the happening of some event, then it is not only logical but also sheer common sense to postpone not only order of demolition but also the decision whether to order demolition or not till the happening of the particular event requiring such decision. Accordingly, I do not find any legal error in the impugned findings recorded by the lower appellate court and the decree passed by it refusing to grant relief for demolition deserves to be approved. However it is directed that in case partition suit is filed or has already been filed then the question whether constructed portion shall be given in the share of the person who has constructed the same or other co-sharers must be compensated in terms of money decree or construction must be directed to be demolished should be considered at the time of preparation of final decree therein. If such stage arrives then findings recorded by the courts below in the judgments giving rise to the instant second appeal shall not be taken into consideration. Accordingly, the decree passed by the lower appellate court refusing to grant the relief for demolition is approved with the above observations and second appeal is accordingly disposed of with the slight variation in the decree passed by lower appellate court in the form of observations as made above.