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51. A Bench of Lahore High Court in Yara v. Jalal, AIR 1931 Lah 631 (2), expressed the same view.

52. In the rural areas of Punjab where customary law holds the field there are special features governing the right of the proprietors and non-proprietors as to bringing under possession vacant sites in the abadi. A co-sharer may bring into his use and possession vacant site which is not reserved for common use of the villagers. In the absence of special circumstances, such as a co-proprietor being already in possession of more than his share of the village abadi, or the particular site having some special value, or where the unoccupied and vacant site in the abadi has already been reduced to an extent making it undesirable for further appropriation, a co-sharer will not be restrained from bringing into his use and possession a portion of the vacant site.

But in the case of a dwelling house, in the village each proprietor has a right of property and the right entitling him to exclusive possession regardless of the fact whether the area in actual occupation of a proprietor is in excess of what he would he entitled to in the event of partition. The village abadi has special incidents the analogy of which cannot be incorporated into other cases of joint ownership (vide Rattigan's Digest of Customary Law, paras 233, 234 and 235),

53. In abadi deh every proprietor can build a kotha and in fact abadi deh is meant for this purpose and for other common purposes of the village; and a suit for an injunction to remove the kotha, is not maintainable, in the absence of proof of material and substantial injury, and other circumstances mentioned above (vide AIR 1929 Lab 499).

"To allow the contesting defendants to build a house on the site will in effect amount to excluding that site from that of which partition can be claimed by any member of the proprietary body by means of appropriate proceedings. So long as the site remains vacant it does not become the absolute property of the proprietor or the proprietors in possession and in any action brought for the partition of the shamlat abadi will be thrown into the hotchpotch. However, as pointed out in Paragraph 223 of Rattigan's Digest of Customary Law, each proprietor has a right of property in his dwelling house in the village and after a house has been allowed to be built on any vacant site, it cannot be thrown in the hotchpotch when an action for partition of the shamlat abadi is brought."

56. In Makhan Singh v. Ishar Singh, 136 Pun Re 1906, Reid, C. J., distinguished the case of dwelling houses from the case of village common land on which the co-sharers had been in the habit of tethering cattle, as, that was partible and had not been dedicated to a common purpose in the sense in which land occupied by mosques, tanks and roads had been dedicated.

57. It will thus be seen that in the case of (1949) 51 Pun LR 192, Achhru Ram. J., was stressing the peculiar feature of the customary law of Punjab relating to abadi deh. In the abadi deh, a house of a proprietor is not a subject-matter of the partition of the shamlat abadi, but this is not a feature common to other joint properties. The observations of the learned Judge cited above cannot, therefore, apply to the present case as there is no legal ban on partition of the building if that becomes necessary.