(1) These appeals are brought by defendants 1 to 3 and by defendants 12 to 14 against a preliminary decree granted in a partition suit.

(2) The land in dispute comprises plot 1863, area 18 dhurs and 12 dhurkis, and plot 1869, area 1 katha and 12 dhurs, located in the town of Buxar. The plaintiffs claimed that the land was ancestral and they were entitled to be granted partition of eight annas share therein. Defendants 1 to 3 contested the suit on the allegation that plot 1869 was acquired by Gaya Master from whom they had purchased the plots by an unregistered document. It was alleged on behalf of these defendants that on a portion of the plot they had erected a house to the knowledge of the plaintiffs and in consequence they had acquired title by ouster. A similar claim was advanced on behalf of defendants 12 to 14 who contested the suit so far as plot 1863 was concerned. They alleged that they had purchased the plot from. Gaya Master by virtue of an oral sale and subsequently built a house thereon. An alternative claim of ouster was also pleaded on their behalf. Upon a consideration of oral and documentary evidence the Munsif found that both the plots were joint family properties and that the story of the defendants that they had made a purchase of the plots was not acceptable. The Munsif also held that the defendants had not established the plea of ouster with respect to either of the plots in question. The Munsif therefore granted a decree to the plaintiffs for partition of eight annas share of the two plots and directed that the

"Commissioner will have due regard in effecting partition to the convenience of the parties and that he may allow compensation in money to others if he thinks it advisable not to partition the house."

The decision of the Munsif was affirmed by the learned Subordinate Judge in appeal. But in the operative portion of the judgment the Subordinate Judge observed :

"As the defendants have made constructions, so naturally they would be entitled to compensation or such relief at the time of actual partition and. this is a matter which has to be determined at the time of partition."

(3) The main question argued is that upon the findings reached there ought to be a direction in the decree that the house erected should not be partitioned but that the two plots should be assessed at a reasonable price and that the plaintiffs ought to be granted their share of the value so assessed which is to be paid by the defendants.

(4) In approaching this question it is necessary to bear in mind two important principles. In the first place, if one of the cosharers intends to appropriate to his own use a portion of the joint land and takes up a portion of such land and builds a pucca house thereon he ought not to be treated as a trespasser. Secondly, if a co-sharer seeing one of his co-sharers erect a house on a piece of joint land stands by and makes no objection, a Court of Equity will presume his acquiescence to the erection of the building and will not order demolition of the pucca building on the joint land unless it is shown that injury would accrue to the co-sharer plaintiff and also before the building was started objection was taken to its erection. The principles were clearly enunciated by Mahmood J. in PARAS RAM v. SHERJIT, 9 All 661, in which the learned Judge said that the mere fact of a building being erected by a joint owner of land without the permission of his co-owners, and even in spite of their protest, is not sufficient to entitle such co-owners to obtain the demolition of such building, unless they can show that the building has caused such material and substantial injury as could not be remedied in a suit for partition of the joint land. To a similar effect is the decision of ANANDACHANDRA SEN V. PARBATI NATH SEN, 4 Cal LJ 198 wherein the eminent Judge Sir Asutosh Mookerjee observed that acquiescence is quiescence under such circumstances as that assent may be reasonably inferred from it and is no more than an instance of the law of estoppel by words or by conduct; in other words, acquiescence does not mean simply an active, intelligent consent, but may be implied, if a person is content not to oppose irregular acts which he knows are being done. The principle has been followed by this High Court in KRISHNA KUMAR SINGH v. PADUM SINGH, 31 Pat LT 7, wherein it was held that a co-owner cannot obtain a mandatory injunction for demolition of a building erected by the co-owners unless he can establish that he had sustained some substantial injury by reason of the erection of the building and that he took reasonable steps in time to prevent the erection.

(5) In support of his argument Mr. P. Rule Das also referred to Section 2 of Partition Act IV of 1893 which states:

"Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the share-holders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds."

Learned counsel addressed the argument that even if Section 2 of the Partition Act was not strictiy applicable to the present case the Court has inherent jurisdiction to apply the well-known principle of equity embodied in the statute, viz., that where it is inconvenient to divide a property, that property must be left in the possession of the person in occupation and other persons who cannot conveniently get actual possession should be compensated. Learned counsel founded his argument on BASUNTA KUMAR GHOSH V. MOTI LAL GHOSH, 11 Ind Cas 370 [LQ/CalHC/1907/80] (Cal) and DARBHAMULLA SUBBAMMA v. VALIVETTI VEERAYYA, 61 Mad L J 552.

(6) Applying the principle established by these authorities it is plain, in the circumstances proved in the present case, that the plaintiffs cannot be permitted to claim partition of the two houses built on the land by the defendants. The plaintiffs of course have proved that the land is ancestral and they are entitled to claim partition of eight annas share of the land. It was argued by Mr. P.R. Das that the house covers almost the whole of plot 1863 and a great part of plot 1869 though exact measurement is not known. The lower Courts have also found that the defendants had not) only constructed these houses but the plaintiffs were aware of the construction and that the defendants had been in occupation of the house for a long term of years. It was argued by Mr. B.N. Mitter that if the plaintiffs are deprived of a share of the house much hardship would be caused. This argument is not correct since the learned Munsiff states at page 6 that there was evidence that the parties had separate houses and they had been living separately in them and that the plaintiffs might not have objected to the construction on these plots because they were not inconvenienced. It would therefore seem that the plaintiffs are in occupation of certain houses, other than the two houses which are in dispute in the present case. In any event the plaintiffs have not sought for partition of the two houses built by the defendants but only of the land on which the houses stand. In the circumstances of the case we therefore consider that the plaintiffs should not get eight annas share of the two houses but the commissioner should instead fix a reasonable price for the land in dispute and the defendants should be asked to compensate the plaintiffs in money to the extent of their share. If it is possible to make a division of the vacant area of the two plots which is not covered by the two houses, the commissioner will make an attempt to give to plaintiffs their proper share of the vacant land, otherwise the commissioner will grant money compensation to the plaintiffs. In our opinion the decree of the lower appellate Court should be modified in this manner.

(7) The appeals are accordingly allowed and the decree of the lower appellate Court will be modified in the manner indicated above. There will be no order as to costs of the appeals.