JUDGMENT
V.K. Jhanji, J.
1. This is plaintiffs’ second appeal directed against the judgment and decree of the Courts below whereby suit of the plaintiffs for possession of land measuring 11 Marias and for recovery of Rs. 1,000/- as mesne profits, for the use and occupation of the suit land, has been dismissed.
2. In brief, the facts are that land measuring 4 kanals 11 marla was owned by four brothers, namely, three plaintiffs and Tilak Raj, respondent No. 2. Plaintiffs alleged that respondent No. 1, namely, B.S. Amarmeet son of Charan Singh had encroached upon a part of land measuring 4 kanals 11 Marla and had constructed a house thereon. Plaintiffs alleged that respondent No. 1 had done so by taking advantage of the fact that the plaintiffs were not the local residents as all the three were living outside Pathankot. Plaintiffs thus prayed that respondent No. 1 be directed to deliver possession to the plaintiffs after removing the construction. Respondent No. 1 contested the suit. He pleaded that the second respondent being one of the co-owners, had transferred the possession of the land to him and consented to the construction to be raised by him. He thus pleaded that his possession could not be characterised as that of trespasser nor the plaintiffs could seek his ejectment.
3. On the pleadings of the parties, trial Court framed the following issues:
1. Whether defendant No. 1 has entered into possession and raised construction in suit land with consent of defendant No. 2? If so, its effect? OPD.
2. Whether the plaintiff is entitled to mesne profits? If so, to what amount? OPP.
3. Relief.
4. Trial Court dismissed the suit and in appeal by the plaintiffs, the judgment and decree of the trial Court has been affirmed. It was held that status of defendant No. 1 being that of a licensee, he has every right to continue in occupation. It was also held that there could be no question of payment of mesne profits or compensation for use and occupation of the land in question as respondent No. 1 came in possession with the consent of the co-owner.
5. In this second appeal, it has been contended by the learned counsel for the plaintiffs that the Courts below have erred in treating respondent No. 1 as licensee. He contended that the co-owner cannot raise construction of a permanent nature on joint land excluding others and so the person claiming under him would not get a better right than what a co-owner has.
6. After hearing the learned counsel and on going through the record, I am of the view that there is no merit in this appeal. It is now no more in dispute that respondent No. 1 came in possession with the consent of respondent No. 2 who is also a co-owner along with the plaintiffs. Construction too was raised by respondent No. 1 with the consent of respondent No. 2. It is true that normally a co-owner is not entitled to raise construction of permanent nature on joint land without the consent of other co-owner but in this case construction has already been raised and, therefore, the appropriate remedy now left to the plaintiffs is only to sue for partition and not for directing respondent No. 1 to deliver possession after removing the construction. In case, on partition, the property in possession of respondent No. 1 comes to the share of the plaintiffs, they would be entitled to take possession from him as he was not put in possession by the other co-owner with the consent of the plaintiffs. So, far as the present suit is concerned, no relief could have been granted to the plaintiffs and, therefore, both the Courts were right in dismissing the suit of the plaintiffs. Accordingly, this appeal shall stand dismissed.