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Allahabad High Court
Najju Khan vs Imtiaz-Ud-Din on 6 December, 1895
Equivalent citations: (1896) ILR 18 All 115
Bench: J Edge, Kt., Burkitt


JUDGMENT

John Edge, Kt., C.J. and Burkitt, J.

1. One co-sharer erected a new building on some common land without the consent or acquiescence of other co-sharers. One of the other co-sharers has brought this suit to have a mandatory injunction for the demolition of the building. The suit was resisted upon the ground that the land was not joint. This part of the claim to which we are referring was decreed by the first Court. On appeal, the Subordinate Judge dismissed the suit so far as this part of the claim is concerned; the other part of the claim had been dismissed by the first Court and from that there was no appeal.

2. The plaintiffs have appealed from the decree of the Subordinate Judge. The Subordinate Judge was of opinion that, although the land was common land held jointly by the co-sharers, the defendant’s new building did not cause any direct loss to the other co-sharers. That is not the point in our opinion. The law provides a legitimate means by which any co-sharer may obtain partition. The law does not favor one co-sharer adversely to the other co-sharers making a partition in his own favor, and selecting the portion of the land he likes by erecting a building upon it. This case is within the principle of the decision in Shadi v. Anup Singh I.L.R. 12 All, 436. We set aside the decree of the Court below with costs in both Courts and restore and confirm the decree of the first Court.


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