JUDGMENT N.K. Mehrotra, J.
1. This is second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 5.4.1983, passed by the IVth Additional District Judge, Unnao in Civil Appeal No. 160 of 1982, arising out in Regular Suit No. 15 of 1982, decided by the Munsif Purwa, Unnao, by judgment and decree dated 30.8.1982.
2. I have heard Shri U.S. Sahai, holding brief of Shri H.S. Sahai, the learned counsel for the appellants and Shri P. K. Trivedi, the learned counsel for the respondents on the substantial questions of law formulated in the memo of the appeal.
3. It appears that the plaintiff-appellants filed a suit for permanent injunction on the ground that the parties of the suit belonged to one family and their houses were adjacent to each other. It is alleged that the old wall of the defendant's house towards east had fallen down in the rain which was being reconstructed by the defendants but the defendants were trying to open the door towards east in the said wall and were threatening to interfere in the plaintiffs' sahan without any right. The plaintiffs' sahan is being used for keeping their cattle, bullock-cart, wood and cow-dung cakes etc. and because defendants were trying to open the door to interfere in the possession of the plaintiffs, the suit for injunction was filed.
4. The defendant-respondents contested the suit on the ground that the parties' house was joint. It was also admitted that the exit of the two houses was towards north. It was also admitted that they were reconstructing their wall but there was a door in the old wall also. It was alleged that the ancestral house of the parties was joint in which the defendants and other coparceners were residing while the house in which the plaintiffs were residing was constructed by the defendants' father with joint income of the family. There was another house constructed by Surendra Bahadur Singh the defendants' father in which he was residing separately. The sahan towards north of the houses was joint. The nabdan of the defendants' house also opens towards the disputed sahan. The defendants did not want to create any interference by opening the door.
5. The plaintiffs filed replication and alleged that the house in which the plaintiffs were residing was never constructed by the defendants' father nor the construction was raised on the joint property and the house exclusively belonged to the plaintiffs. It was alleged that the plaintiffs had also share in the ancestral house in which the defendants were residing.
6. The learned Munsif framed the following issues :
(1) Whether the residential house of the plaintiffs was constructed by their father 50 years' ago?
(2) Whether the plaintiffs are exclusively owners of the disputed sahan.
(3) Whether the plaintiffs are entitled to restrain the defendants from opening a door in their wall towards the disputed land?
(4) To what relief, the plaintiffs are entitled?
7. All the issues were decided in favour of the plaintiffs and the suit for injunction was decreed.
8. The defendants preferred first appeal and the first appeal has been allowed and the suit has been dismissed.
9. It is against the judgment of the first appellate court, the instant second appeal has been preferred by the plaintiffs.
10. Following substantial questions of law have been formulated:
I. Whether even if, the land in dispute was found by the lower appellate court to be joint properties of the parties, the suit for injunction could be dismissed and no decree for interference in the joint possession of the plaintiff could be passed by the lower appellate court.
II. Whether the lower appellate court in misconstruing Section 9 of the U. P. Act No. 1 of 1951 and in not holding the plaintiffs to be owners of the land in dispute inasmuch as the land in dispute being admittedly appurtenant to the plaintiffs' house, the findings recorded by the lower appellate court stand vitiated?
11. A perusal of the judgment of the first appellate court goes to show that the case of the plaintiffs before the first appellate court was that both the houses in which the plaintiffs and the defendants were residing were separate and the sahan of the both the houses shall vest to the owners of the house respectively under Section 9 of the U.P.Z.A. and L.R. Act because both were appurtenant to their respective houses and under such circumstance, the disputed sahan being appurtenant to the plaintiffs' house exclusively belonged to the plaintiffs. The case of the defendants before the first appellate court was that the learned trial court had admitted the sahan as joint but the learned lower court on his own, on the basis of the adverse possession held the plaintiffs' title. It was the case of the defendants before the first appellate court that after holding that the disputed land was the joint land, no adverse possession was possible on the joint land. It was admitted to the plaintiffs before the first appellate court that no partition took place. Therefore, it was for the plaintiffs to prove that the house was exclusively constructed by the plaintiffs' father on the land taken by the plaintiffs' father. It was also contended by the defendants that the situation of the spot proved that the sahan was in joint use of both the parties. The plaintiffs admitted that in the disputed sahan a temple was constructed by Rameshwar Singh who was uncle of plaintiffs and that again proved that the sahan was jointly owned by family members.
12. The learned first appellate court has held that it was admitted that the parties belonged to one common ancestor. It was also admitted that the defendants were reconstructing their old wall at the same place. There was no documentary evidence regarding ownership of the disputed sahan of the house in which the plaintiffs were residing. The learned first appellate court has pointed out that the plaintiffs had admitted that the house in which the defendants were residing was owned by the parties and if, it is claimed that any property is acquired by any member of joint Hindu Family as exclusive, heavy burden lies on the party so claiming. The learned first appellate court has also observed that it were the plaintiffs who were claiming the house to be the exclusive house of their father after taking the land from the Zamindar. Therefore, it was the burden of the plaintiffs to prove that the house was constructed by the plaintiffs' father but the plaintiffs could not file any documentary evidence to prove their case. On the other hand, the defendants have filed papers to prove the circumstance that the house was not constructed by the plaintiffs' father exclusively. After taking into consideration the entire evidence on record, it has been held by the first appellate court that the defendants have proved the circumstance that Gajraj Singh constructed the house and it belonged to both the plaintiffs and the defendants. It was also been held by the learned first appellate court that the opening of the nabdan of the defendants' house is on the disputed sahan and the disputed sahan was jointly owned by the parties. After discussing the oral evidence the learned first appellate court has held that it was not proved that the land on which the plaintiffs' house was situated was acquired by the plaintiffs' father and therefore, the plaintiffs failed to prove the ownership of the disputed sahan. The learned first appellate court has further held that if, the land of the house and the disputed land belonged to the parties' ancestor, it could not vest with the plaintiffs under Section 9 of the U.P.Z.A. and L.R. Act. It has also been observed by the learned first appellate court that the plaintiffs also admitted that in the defendants house towards north there was a varandah and in the said varandah there was an opening towards east, i.e., towards the disputed land. It has been held by the first appellate court that the opening of the varandah towards east on the disputed sahan as well as opening of the defendants' nabdan on the disputed sahan proved that the defendants also had right to use sahan. The learned first appellate court has held that the admitted fact that a temple was constructed by Rameshwar Singh, the uncle of the plaintiffs on the disputed sahan is again a circumstance to hold that the sahan was jointly used by the parties to the suit. The learned trial court has recorded a categorical finding that the houses of the parties were constructed on the joint land and the disputed sahan belonged jointly to both the parties.
13. The aforesaid findings of the first appellate court are the findings of facts, which cannot be interfered, in the instant second appeal. Now the question is as to whether the relief of injunction can be granted in favour of one joint co-owner against another joint co-owner. I am of the view that it is a settled law that a co-sharer is presumed to be in possession of every inch of the land and therefore, the relief of injunction cannot be granted in favour of one co-sharer against another co-sharer.
14. The learned trial court has taken the view of adverse possession in favour of the plaintiff-appellants but there was no such case in the pleadings of the plaintiffs. Therefore, no such new case can be set up by the trial court.
15. In view of the findings of the first appellate court with regard to the joint possession of the parties on the house as well as on the disputed sahan, the suit for injunction has been rightly dismissed by the learned first appellate court.
16. So far as the second substantial question of law is concerned. I find that there is no such case of the plaintiffs that the disputed land has been settled with the plaintiffs under Section 9 of the U.P.Z.A. and L.R. Act (U. P. Act No. 1 of 1951). According to the findings of the two courts below that the disputed land along with the land of the houses of the parties to the suit who belonged to the same family, has been joint and the parties have constructed their houses according to their convenience after leaving the sahan land towards north of their house and the disputed land is being used by both the parties to the suit. Therefore, there can be no finding in favour of the plaintiffs that they are the owners in possession and the land in dispute has been settled with their houses exclusively under Section 9 of the U.P.Z.A. and L.R. Act. In view of such findings, the suit of the plaintiffs has been rightly dismissed by not declaring the plaintiffs as the exclusive owners of the disputed land in accordance with the provisions of Section 9 of the U.P.Z.A. and L.R. Act.
17. No other substantial question of law has been either raised or pressed by the plaintiff-appellants.
18. In view of the above, the instant second civil appeal is dismissed with costs to the respondents.