P L D 1963 (W (PLP)

Malik Muhammad Sharif for Petitioner. Sh. Maqbooi Ahmad for Respondents. Date of hearing : 1st March 1963. Allah Rakha, a non‑proprietor and a Kamin built a kotha in the abadi of village Maikan in Tehsil Kharian, District Gujrat and sold the kotha to Fazal Dad defendant‑appellant on the 28th of November 1952, by a registered sale‑deed Exh. P.

1. Some of the proprietors of village Maikan brought a suit to challenge the competency of Allah Rakha to sell the house on the ground that it belonged to the proprietors. They further claimed 8/9 share in the house and sued for its possession. Defendants Nos. 3 to 9 are also proprietors in the said village. Fazal Dad defendant‑appellant and Barkat Ali defendant only contested the suit on the plea that the house was built by Allah Rakha at his own expense and he was, therefore, competent to sell it. The trial Court dismissed the suit holding that the kotha was not built by the village proprietors but was built by Allah Rakha at his own expense and in consequence the proprietors could not challenge the competency of Allah Rakha to sell it. The proprietors appealed against this order. The learned Additional District Judge, Gujrat, agreed with the findings of the trial Court that Allah Rakha had built the kotha at his own expense, but held that the trial Court was in error in thinking that Allah Rakha by raising the superstructure had become owner of the site. The learned Additional District Judge was of the view that according to the general custom prevailing in the Province, a non‑proprietor could not alienate the site of the house, which he had obtained by permission of the proprietors for residential purposes, and that being so, the whole suit should not have been dismissed, and though Fazal Dad had become full owner of the superstructure, he must vacate the site of the house for the use of the proprietors, for although he was himself a proprietor, he could not appropriate the site to himself, and could only remain in joint possession of the site until a partition takes place. He therefore passed a decree for joint possession of the site in favour of the plaintiffs along with other defendant proprietors of the village and allowed Fazal Dad defendant‑appellant to remove the super structure within a reasonable time, which was fixed as one month from the date of the order. This is a second appeal by Fazal Dad.

2. In this appeal it is argued that as Fazal Dad is a proprietor and a co‑sharer in the village, he is entitled to hold the land until it is partitioned and consequently the decree of the lower Appellate Court with regard to the demolition of the house is illegal.

3. This Regular Second Appeal is now to be treated as a revision. The learned counsel for the petitioner relies on Mota v. Pooran and others (A I R 1930 Lah. 862), Dunna Singh v. Ram Singh and others (A I R 1930 Lah. 1061), Khem Singh and others v. Mangal Singh and others (A I R 1933 Lah. 963) and Sundar Das v. Jafar Khan and another (A I R 1935 Lah. 926). In the first case it was held that the mere circumstance of a building being erected on a common land without the permission of the co‑sharers is not sufficient to entitle the co‑sharers to obtain a demolition of such building unless they can show that the building has caused such material and substantial injury as could not be remedied on a partition of the joint land. A co‑sharer can therefore occupy a portion of the abadi land and build a house on it and if instead of building one himself he purchases a superstructure from non‑proprietor his position is not worse in any way. It was held that the transferee‑proprietor is entitled to remain in possession till partition is effected. In Khem Singh and others v. Mangal Singh and others another case decided by a Division Bench, it is laid down that although there is a custom that a non‑proprietor is ordinarily incompetent to sell the site occupied by him, still where the vendees are proprietor in the village they are not liable to be ejected, because any one of the several proprietors of the common land is entitled to appropriate a portion of such land for his own use, pro vided, in doing so, he does not reduce the area required for the common purposes of the village so as to make the remaining area unfit or insufficient for such purposes, or provided he does not appropriate for his own use land, which has been set aside by the village for a particular purpose, so as to divert it from the purpose. Hence where a non‑proprietor occupant sells his house to some of the proprietors in the village, the vendees are entitled to occupy the house, i.e., the land and the materials, as co‑sharers in the village, but subject to the adjustment of the area claimable by all the proprietors in the village on partition, whenever it takes place. In the second case it was ordered that there would be no direction for the removal of the materials, by the vendees in that case, who would be entitled to occupy' the land on which the house stood as co‑sharers in the village, and the materials of the house as full owner. A decree for joint possession of the site was only passed in favour of the pro prietary body. In the last case, namely, Sundar Das v. Jafar Khan and another a non‑proprietor sold Bhora and the site in village Golra to one Sundar Das. The proprietors brought a suit against the sale on the ground that a non‑proprietor in occupation of the abadi site had no right to sell it and such a sale did not bind the proprietors. After the institution of the suit, Sundar Das purchased three shares in the village abadi and became a proprietor in it. It was held that a suit by a proprietor for possession together with the building material standing on the site could not be maintained against Sundar Das and the proprietor was entitled to a decree for joint possession of the site.

4. The above cited cases clearly support the contention of the learned counsel for the petitioner, and the Additional District Judge could not have ordered the demolition of the kotha. That part of the decree is, therefore, set aside. The decree for joint possession of the site under the kotha in favour, of the village proprietors, namely, plaintiffs and some of the respondents is maintained. The petitioner will have his costs against the plaintiffs. A. H. Order accordingly.