JUDGMENT Hon’ble Sanjay Misra, J.—This second appeal arises out of the judgement dated 84.1976 in Civil Appeal No. 301 of 1973 passed by the Additional Civil Judge, Azamgarh. 2. According to Sri A.N. Bhargava learned counsel for the defendant appellant the Trial Court had dismissed the suit of the plaintiff respondent on the ground that partition has taken place and the constructions in question have fallen into the share of the subsequent purchaser of co-sharer. He states that in an appeal filed by the plaintiff respondent the appellate Court has set aside the judgment of the Trial Court and allowed the appeal by holding that no partition had taken place between the co-sharers and the defendant No. 1 being a subsequent purchaser from one of the co-sharers cannot raise any constructions on the joint land and therefore the same requires to be demolished. 3. According to Sri A.N Bhargava learned counsel for the defendant appellant even if the finding that no partition had taken place amongst the co-sharers then the defendant appellant being a purchaser from one of the co-sharer having raised constructions over the plot in question it could not be ordered to be demolished because it would come within the hoch-poch of the joint property and each of the share holders could claim to have a share in such construction. He states that the decree of demolition is therefore liable to be set aside. He has placed reliance on a Full Bench decision of this Court in the case of Chhedi Lal and another v. Chhotey Lal, AIR (38) 1951 All 199, in support of his submission. 4. Sri P.C. Srivastava holding brief of Sri R. P. Singh learned counsel for the plaintiff-respondent has contested the submission and has submitted that even if no partition had taken place amongst the co-sharers the subsequent purchaser could not make any construction over the joint property unless he obtained a partition from the original owners of the property in question. He states that the first appellate Court has recorded a categorical finding of fact that no partition had taken place amongst the co-sharers and therefore the subsequent purchaser of one share could not raise such construction and the decree of demolition of the construction raised by the defendant appellant has been rightly passed by the Court. 5. He states that the first appellate Court has recorded a categorical finding of fact that no partition had taken place amongst the co-sharers and therefore the subsequent purchaser of one share could not raise such construction and the decree of demolition of the construction raised by the defendant appellant has been rightly passed by the Court. 5. The plaintiff respondent filed a suit for possession over Shikmi plot No. 5, 6/1, 6/2, 6/3, 7/1 and 12/1 contained in original abadi plot No. 1113 situated in village Tarwa. He also prayed for demolition of the constructions made thereupon and that the defendant No. 1 be injuncted from interfering in his possession over the land in question and also from interfering in his right of way over plot No. 7. He also prayed for damages for the trees cut by the defendant. The plaintiff and the defendant Nos. 2 and 3 belong to the same family and their ancestral house existed on a portion of the said plots. They claimed that the entire property vested in them under Section 9 of the UPZA & LR Act from the date of vesting. The cause of action for bringing the suit was when the defendant No. 1 started making construction over some portion of the plots in dispute which was completed during the pendency of the suit. The defendant Nos. 2 and 3 did not contest the suit. 6. The defendant appellant admitted the pedigree and alleged that a partition had taken place between the plaintiff and defendant Nos. 2 and 3 and the land in question was allotted to the share of Jhuri Singh who came in possession of it. He stated that on the date of vesting Jhuri Singh was alone in possession and hence he became owner thereof. The claim of the defendant No. 1 was that Jhuri Singh gave the land to him and his sole heir and legal representative namely Shanker Singh executed a sale-deed on 20.8.1962 and 20.5.1965 in favour of defendant No. 1. The Trial Court framed the issues and found that the land in dispute lies within the said plots and that a Rasta existed towards the east of the construction passing through Shikmi plot No. 7. It found that a partition had been affected but recorded that plot No. 7 and plot No. 12/1 were not settled with Jhuri Singh on the date of vesting. It found that a partition had been affected but recorded that plot No. 7 and plot No. 12/1 were not settled with Jhuri Singh on the date of vesting. It held that the defendant No. 1 would be owner of plot Nos. 4, 5 and 6 which he had purchased from Shanker Singh. The Trial Court proceeded to consider the evidence and found that the plaintiff could not prove that the defendant had cut the trees and hence no damages can be awarded against him. It decreed the suit only for Shikmi plot No. 7 and 12/1. It restrained the defendant from interfering in the right of way of plaintiff and defendant Nos. 2 and 3 over Shikmi plot No. 7. 7. Two appeals were filed, Civil Appeal No. 301 of 1973 was filed by the plaintiff respondent and Civil Appeal No. 351 of 1973 was filed by the defendant appellant. Both the appeals were consolidated and decided by the common judgment dated 8.4.1976 where against this second appeal has been filed. 8. The appellate Court allowed the appeal of the plaintiff respondent and dismissed the appeal of the defendant appellant. It decreed the suit for demolition of the construction over Shikmi plot Nos. 4, 5 and 6 and for permanent injunction restraining the defendant No. 1 from interfering in the joint possession of plaintiff and defendant Nos. 2 and 3 to the extent of half share over Shikmi plot Nos. 4, 5 and 6. It also decreed the suit for damages of Rs. 200. The appellate Court found that there was no convincing evidence that partition had been affected and hence did not believe the case set up by the defendant appellant and held that he had not purchased Shikmi plot No. 7 and 12/1 as such he has no claim over the said plots. The first appellate Court proceeded to determine the share of the plaintiff alongwith defendant Nos. 2 and 3 and the share of the defendant No. 1. It held that the plaintiff alongwith defendant Nos. 2 and 3 are owners to the extent of half share in the plots in suit and the defendant No. 1 is also owner to the extent of half share in the plots in dispute. It found that there was admission of the defendant appellant as also his witnesses that Shikmi plot No. 7 is Rasta. 2 and 3 are owners to the extent of half share in the plots in suit and the defendant No. 1 is also owner to the extent of half share in the plots in dispute. It found that there was admission of the defendant appellant as also his witnesses that Shikmi plot No. 7 is Rasta. On the basis of the evidence led by the parties it was held that the constructions were made by the defendant No. 1 in the year 1966 i.e. four years before filing of the suit and that it was made in such a manner that it is upon an area of more than half share purchased by the defendant No. 1. It therefore concluded that the proper remedy is to grant the plaintiff relief of demolition of such construction. 9. In so far as the submission of learned counsel for the parties is concerned the question of grant of decree of demolition is always an issue of the discretion of the Court and equity to be considered between the parties. It is true that equity comes after law and not vice-versa. When the law permits and does not prohibit transfer of un-divided share of a co-owner then the purchase by the defendant appellant of the undivided share of one co-owner cannot normally be faulted nor it has been challenged in these proceedings. Therefore, the share of the defendant appellant who is subsequent purchaser from one co-sharer is available in the un-partitioned property. 10. In so far as the constructions made by the defendant appellant are concerned the Trial Court had dismissed the suit of the plaintiff respondent by holding that a partition had been effected. If that had been the situation the constructions made by the defendant appellant on the portion allotted to his predecessor in interest in partition would not have been subject of dispute. He could be entitled to only that portion which he had validly purchased. He could not make construction on land exceeding his portion. 11. However, the first appellate Court has allowed the appeal of the plaintiff respondent and has reversed the finding of the Trial Court and held that no partition had taken place. This finding is based on the evidence of the parties who could not prove that a partition had taken place earlier. 11. However, the first appellate Court has allowed the appeal of the plaintiff respondent and has reversed the finding of the Trial Court and held that no partition had taken place. This finding is based on the evidence of the parties who could not prove that a partition had taken place earlier. In a second appeal this Court would not re-appreciate the evidence nor such finding can be held to be perverse. 12. Under such circumstances the undivided share of the defendant appellant who is a subsequent purchaser from one of the co-sharers does not extinguish. He remains to have ownership rights even in the un-partitioned property to the extent of share purchased by him validly from one of the co-sharers. But such ownership right does not entitle him to unilaterally allot to himself the portion of his choice or liking. He is an outsider who has gate crashed into the undivided property of a family. He can claim partition from the original owners if the original owners do not challenge his purchase. In the case other than a residential house of the family he may even be put in possession by his vendor. But such possession only puts him in the shoes of the vendor. He gets only those rights which were possessed lawfully by his vendor. If his vendor had a right to claim partition of the undivided property, he too could make such a claim. 13. Any right that he acquires by a valid transfer are in no manner superior to the already existing rights of the co-owners of his vendor. He cannot in law adversely affect the rights of the original owners of their share even if he has become their co-sharer. 14. In an undivided property each share holder has rights to the extent of his share in every inch or even a lesser measurement and another sharer cannot transgress on the rights of other co-owners by disposing them otherwise than by the due process of law. Therefore, if he has made construction on the joint family property without any partition such construction can be made available in the joint property for partition when the shares of the parties are determined and the defendant appellant cannot claim exclusive ownership rights over such constructions since it would fall within the ambit of the joint undivided property. 15. Therefore, if he has made construction on the joint family property without any partition such construction can be made available in the joint property for partition when the shares of the parties are determined and the defendant appellant cannot claim exclusive ownership rights over such constructions since it would fall within the ambit of the joint undivided property. 15. The issue of nucleous fund used for construction would not arise since admittedly he is a stranger to the family and has raised the constructions. He is an alien to the family but has acquired share in the undivided property of the family. Therefore the principles governing the members of the family inter-se cannot be taken benefit by such an alien share holder. When he steps in the shoes of his vendor he only acquires the rights to a share in the property so transferred by the deed of conveyance and other consequential rights as an owner. He cannot claim to be possessed of such status or rights which the members of the family possessed against each other by virtue of being the members of the same family. Members of the family can be in implied permissive possession of parts and portions of the joint family property more than their share by mutual adjustment and without there being any express permission. But the stranger/purchaser cannot claim possession more than his share by pleading implied permission. There will have to be express permission and in the absence of which his possession of the property to the extent it is more than his share shall be unlawful and illegal for which he can be injuncted and a decree of demolition can be passed. 16. In the Full Bench decision of Chhedi Lal (supra) it has been held that the right to the relief of demolition and injunction will be granted or withheld by the Court according to the circumstance of each case. Each case has to be decided upon its own peculiar facts and the exercise of discretion will depend upon proof of circumstance and balance of convenience. The Court will therefore be guided by consideration of justice, equity and good conscience. Each case has to be decided upon its own peculiar facts and the exercise of discretion will depend upon proof of circumstance and balance of convenience. The Court will therefore be guided by consideration of justice, equity and good conscience. Paragraph 25 of the judgment in Chhedi Lal (supra) is quoted here under : “As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. “ 17. That the Court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. “ 17. In view of the finding recorded by the first appellate Court that the construction made by the defendant appellant are such as to leave no room for the peaceful enjoyment of the co-sharers being the plaintiff and the defendant Nos. 2 and 3 and in view of the circumstance that the defendant appellant is resisting the demolition he will have to concede his rights to the co-sharers at the time a partition is sought to be effected or surrender such portion of the construction made by him if allotted to the other co-sharer. 18. In the present case a decree of demolition has been granted by the first appellate Court. The reason being two fold. The first is that the appellant has made constructions over the land which cover more area than his share. The second is that the plaintiffs allege that they have been left with no room for peaceful enjoyment of their shares. The first reason given by the first appellate Court for granting a decree of demolition is such where it cannot be said that the plaintiffs cannot be compensated, for the reason that the plaintiffs can be compensated at the time they seek partition by allotment of even the constructed portion in proportion to their share. Once such allotment is made to them they can deal with their portion as per their convenience for the peaceful enjoyment of their so partitioned share. Therefore when demolition of the constructions are likely to cause substantial injury to the defendant the Court ought to have exercised its discretion and taken into consideration the balance of convenience. 19. The right of the co-sharers in a joint property cannot be the only reason to grant relief of demolition when such right has been infringed by another co-sharer. The facts and circumstances of each case have to be considered independently. Where such circumstances indicate that the co-sharer whose rights have been invaded stands to lose even a portion of his share at the time of partition then the discretion for directing demolition can be well exercised. The facts and circumstances of each case have to be considered independently. Where such circumstances indicate that the co-sharer whose rights have been invaded stands to lose even a portion of his share at the time of partition then the discretion for directing demolition can be well exercised. Each case may have its own similar or such circumstance and there the Court can exercise its discretion to order demolition. 20. In this case the plaintiff claimed that his right of way as a co-sharer was encroached. When right of a co-sharer in the form of a right of way and peaceful enjoyment is alleged to be violated and on the other hand demolition of constructions can be a substantial injury to the other co-sharer then to exercise discretion the Court must consider balance of convenience between the parties. Discretion is to be exercised judicially. 21. Under such circumstances the facts reveal that when the shares of the plaintiff and defendant Nos. 2 and 3 could be satisfied in the event of partition, if necessary, even from the construction made by the defendant appellant, who is a subsequent purchaser and he is not resisting such claim, then the demolition ordered by the first appellate Court does not appear to be quite in accordance with justice and equity nor on a proper consideration of balance of convenience between the parties. The substantial questions of law framed by the order dated 4.5.2010 are answered accordingly. 22. This second appeal is liable to be allowed only to the extent that the decree of demolition shall stand set aside however the rights of the co-sharers in the event of partition cannot be defeated by the defendant appellant only for the reason that he has made constructions on the portion in excess of his share. 23. The appeal stands partly allowed as above. 24. No order is passed as to costs. —————