Sinha, J.:— This is a plaintiffs' second appeal from the concurrent decision of the Courts-below dismissing their suit for a mandatory injunction.
2. The facts found as proved in this case are as follows. Village Amahra comprises a number of estates including Tanzi Nos. 2731 and 2758. The plaintiffs are the proprietors of Tauzi No. 2758, and the first party defendants 1 to 4 are the proprietors of Tauzi no. 2731. It appears that at the time of the partition of the village into several estates certain lands including homestead lands were left joint amongst the proprietors of the different estates carved out of the parent estate. Khewat No. 46 is in respect of such joint lands. It comprises a number of plots including Plot No. 8419, which is the plot in dispute in this case. This plot is included in Khata No. 1202 which is shamilat of all the maliks. The plaintiffs alleged, as found by the Courts below, that Plot no. 8419 was the joint property of all the proprietors of the different estates thus carved out of the parent estate. The defendants contended that the plot in question belonged exclusively to the proprietors of Tauzi No. 2731. But that has been found against them. The plaintiffs alleged that the first party defendants, now respondents, shortly before the institution of the suit started a structure of a permanent character, and that, in spite of their protest, the defendants continued their building operations which, the plaintiffs apprehended, would deprive them of the right of getting the plot allotted to their estate in the event of a partition of the joint lands. The ground of their preferential claim to this plot was that it was near their residential house. At the trial the plaintiffs attempted to prove that the plot in question was surrounded on three sides by their lands, but that case has failed. The finding of the Courts below is that this plot had been in possession of the contesting defendants first party even since before the preparation of the record of rights some thirty years before the commencement of the suit, and though the defendant's case that their structure was much older than what the plaintiffs alleged had not been accepted by the Courts, the finding 13 that the structure had been practically completed except for the roof which was being made at the time the Commissioner appointed by the Court visited the locality. The plaintiffs prayed for the demolition of the structure on the plot so that it might be restored to the condition in which it was before the structures were made. In the record of rights this plot is shewn as gairmazrua malik but in possession of the contesting defendants. A large number of persons were impleaded as the defendants second party on the ground that they were the other co-sharer proprietors of the different tauzis, and, as such, interested in the result of the suit. Some of those defendants second party died during the pendency of the suit, and one of the questions mooted in the Courts below was whether the suit as a whole abated on account of those deaths.
3. The defendants first party, who are the contesting defendants, raised a large number of issues most of which have been decided against them by the Courts below, and no more arise for decision in this Court. The defence, which has succeeded in both the Courts below, is that the structure was substantially completed be. Sore the commencement of the suit, and that the building was under construction for several months without any protest by the plaintiffs. Some of the defendants second party supported the plaintiffs' claim whereas others by their written statement lent their support to the con-testing defendants. The trial Court dismissed the suit on the ground that, the plot having been in exclusive possession of the principal defendants since before the preparation the record of rights, they had a right to construct the house in question, and that the defendants had acquired occupancy right in the same as they were also raiyats of the village, and that the suit was barred by limitation. On appeal by the plaintiffs, the lower appellate Court has agreed with the trial Court in the result, but not exactly for the same reasons. Is held that the defendants had not acquired any occupancy rights in the land in question, and that, though the defendants had remained in possession of the plot all along since before the survey they could not have acquired rights by adverse possession, nor could the plaintiffs' suit be barred by limitation. But it held that the suit had abated as against defendants 19, 28, 44 and 62 with the result, as the Court below conceived, that, even in the event of the plaintiffs' success, the defendants would remain in possession of the house in respect of the interest of those defendants. As will presently appear, the question of abatement was absolutely of no consequence in this case.
4. In this Court in second appeal the learned counsel for the appellants has contended that so far as this Court is concerned, this is a case of first impression in the sense that there is no decision of this Court exactly on all fours with the present case. This case was placed for hearing, in the first instance, before Manohar Lall, J. who directed it to be placed for hearing before a Division Bench.
5. On behalf of the appellants reliance was placed on the decision of the Allahabad High Court in the cases of Najju Khan v. Imtiazuidin, 18 All. 115 : (1895 A.W.N 248); Ram Bahadur v. Ram Shankar Prasad, 27 All. 688 : (2 A.L.J 455); Ram Lal v. Muhammad Amir Mustafa Khan, A.I.R (12) 1925 All. 700 : (85 I.C 849); Sheo Harakh v. Jai Govind, A.I.R (11) 1927 All. 709 : (??? I.C 414) and of the Chief Court of Oudh in the cases of Chandi Prasai v. Shyam Behari, 13 Luck. 442 : (A.I.R (24) 1937 Oudh 449); Radhye Lal v. Kunj Behari, 15 Luck. 61 : (A.I.R (26) 1939 Oudh 275) and Amjad Ali v. Mt. Bismillahan, 184 I.C 266 : (A.I.R (27) 1940 Oudh 24). These cases are authority for the proposition that one of several joint owners is not entitled to erect a building upon joint property without the consent of the other on sharers, even though the erection of such a permanent structure may not cause direct loss to the other joint owners. Some of them have gone to the length of holding that even when the plot is in the exclusive possession of a co-sharer as his sahan darwaza, he has no right to erect a building on any part thereof as that would amount to a change in the method of exclusive possession already enjoyed by that co-sharer (See Radhey Lal v. Kunj Behari Lal, 15 Luck. 61 : (A.I.R (26) 1939 Oudh 275). Mahmood, J. sitting singly in the case of Paras Ram v. Sherjit, 9 All. 661 : (1887 A.W.N 253), after discussing a large number of decisions of that Court and of the Calcutta High Court, held 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 could show that it had caused such material and substantial injury as could not be remedied in a suit for partition of the joint land. His Lordship further pointed out that Courts in India in such matters exercised the combined jurisdiction of law and equity, and could not disregard equitable considerations in enforcing equitable remedies. He also pointed out that a distinction must be drawn between a case in which the building had been erected by pure trespasser and a casa in which it had been erected by a joint proprietor on joint land without permission of his joint co-owners or in spits of their protest. He further pointed out that the most important case in India was the decision in the case of Lala Biswambhar Lal v. Rajaram, 8 Beng. L.R App. 67. In that case one of the co-owners had erected a wall upon the joint land without obtaining the consent of his other co-owner, and it was held by Peacock C.J that the Court would not interfere by ordering the demolition of the wall. In the course of his judgment his Lordship quoted the following observations of the learned Chief Justice:
“It appears to me that even if the defendant had not a strict legal right to build the wall upon the joint land, this is not a case in which a Court of Equity ought to give its assistants for the purpose of having the wall pulled down. A man may insist upon his strict tights, but a Court of Equity is not bound to give its assistance for the enforcement of such strict rights.”
The decision of Mahmood, J. referred to above was considered by a Full Bench of the same Court consisting of five Judges including Sir John Edge C.J in Shidi v. Anup Singh, 12 All. 436 : (1890 A.W.N 95 F.B). In that case a co-sharer had just started building a Kachcha structure upon the common land when another co-sharer instituted a suit for an injunction to restrain the construction of the building on the ground that the defendant was building the structure on land in excess of his share in the joint estate and was thus in effect ousting the other cosharer. It was found by the Court that the defendant had been building upon the land in excess of his share which would come to him on partition and that on partition the plaintiff could not be adequately compensated. In those circumstances the Full Bench held that the plaintiff was entitled to a perpetual injunction restraining the defendant from proceeding with the building, and directing that the building already constructed be pulled down. The Court further held that, the Court below having exercised its discretion in favour of the plaintiff by granting the injunction, it was for the appellant to show that the discretion had not been judicially exercised, and, as the appellant failed to show that the High Court refused to interfere. The Allahabad and the Oudh decisions referred to above have purported to follow the decision of the Full Bench just noticed.
6. On the other hand, the leading case of the Calcutta High Court, the decision by Sir Barnes Peacock in 1869 referred to above, has been consistently followed by that Court: see the cases of Nocury Lall v. Bindabun Chunder, 8 Cal. 708; Joy Chunder v. Bippro Churn, 14 Cal. 236 and other cases. The matter was exhaustively discussed by that eminent Judge, Sir Ashutosh Mokerjee, in the case of Ananda Chandra v. Parbati Nath, 4 C.L.J 198. In the course of his judgment his Lordship made the following observations:
“I am not prepared to hold that an exclusive appropriation by one oo-owner of a part of the joint land to his own use by the erection of a permanent structure, is necessarily evidence of an ouster………. The rule is well settled that the plaintiff, who complains of the act of his co-owner, cannot obtain a decree for demolition of buildings or for joint possession, unless he can establish that he has sustained some substantial injury be reason of the act of which he complains: See Shamnugger Jute Factory Co. Ltd. v. Ram Narain, 14 Cal. 189; Joy Chunder v. Bippro Churn, 14 Cal. 236; Atarjan v. Ashak, 4 C.W.N 788; Madan Mohan v. Bajab Ali, 28 Cal. 223; Soshi Bhusan v. Oenesh Chunder, 29 Cal. 500 and Fazilatunnessa v. Ijarz Hassan, 30 Cal. 901. These cases show that the Court will not interfere, unless it is proved that the injury has accrued to the plaintiff by reason of the erection of the building, and that he took reasonable steps in time to prevent the erection.”
With those observations I respectfully agree. In the present case the learned Subordinate Judge, on appeal, has found that no case of substantial injury has been pleaded or made out by the plaintiffs. The learned Judge also pointed out that the only thing alleged on behalf of the plaintiffs was that in the event of a partition the land in question might have been allotted to their share as it was near their residential house. But the Court pointed out further that there were other cosharers also who had got their house near the plot in question, and that, therefore, the Court could not be sure of the position that on partition the plot in question would certainly have been allotted to the plaintiffs. The Court further pointed out that there is no satisfactory evidence to shew that when the defendants began to construot the structures the plaintiffs raised any objection. As a matter of fact, the plaintiffs' own admission in the plaint was that the building was started in February 1939, and the suit was filed in June of the same year. The Court further observed that there was nothing to shew that the structure complained of was on land in excess of the plaintiffs' share in the common lands of the village. In those circumstances the Court below came to the conclusion that it was not at all fair and equitable to grant a decree for demolition of the structures. The question now is whether this Court sitting in second appeal should interfere with the discretion exercised by the Courts below. I am definitely of the opinion that no case for interference by this Court has been made out. That being so, it is not necessary to discuss the further question whether there had been an ??? on the part of the plaintiffs a would deprive them of the legal right which they claimed.
7. In the Tagore Law Lectures of 1895-1896 on the Law of Joint Property and Partition in British India by R.C Mitra this question has been discussed at some length with reference to the authority of the different Courts at pages 226 to 233, and the learned author has come to this conclusion;
“The result of the above discussion is, that in no case should the Courts, at the instance of a cosharer, order demolition of pucca buildings on a joint land, after the same have been erected by another cosharer, unless it be shown (1) that injury would otherwise accrue to the coaharer-plaintiff and (2) that before the buildings were started objection was taken to their erection; Nocurry Lall v. Brindabun Chunder, 8 Cal. 708. In short, it is only where a cosharer cannot be adequately compensated otherwise than by the demolition of a building that a Court of Equity should order such demolition.”
8. In my opinion, the preponderance of judicial opinion is in favour of the view that in the circumstances of this case the remedy by way of a mandatory injunction is not available to the plaintiffs. The appeal is, therefore, dismissed.
9. As regards costs, I find that the defendants raised a number of false issues which were all naturally decided against them. I would, therefore, deprive them of the costs of this Court.
10. Reuben, J.:— I agree.
V.B.B
11. Appeal dismissed.