Ram Nandan Sahay And Others v. Jai Gobind Pandey And Others

1. These analogous appeals arise out of a suit in ejectment brought by the appellants against defendants 1 and 2. The appellants are the proprietors of Tauzi No. 3142. Defendant 3 is the proprietor of Tauzi No. 3143. Defendants 1 and 2 have a house on plot 342 which admittedly lies in Tauzi No. 3143. They have erected a wall and a chabutraon 7 dhurs of land in plot No. 341 which adjoins plot 342, and it is in respect of this trespass on plot 341 that the plaintiffs complain. The lower appellate Court has found that plot 341 is joint between the plaintiff and defendant 3 and that there has undoubtedly been an encroachment by defendants 1 and 2 on 7 dhurs of land in plot 341, but that such encroachment has taken place by the leave and license of defendant 3. It has also found that the land encroached upon falls far short of the area which defendant 3 would be entitled to on partition, and that the plaintiffs have not suffered any substantial injury by reason of such encroachment. On these findings the Courts below have given the plaintiffs a decree for joint possession with the defendants, but have refused to eject defendants 1 and 2 from the land.

2. I am of opinion that the Courts below have taken an entirely correct view of the law on the subject. The authorities, I think, establish the proposition that, before a Court will, in the case of cosharers, make an order directing that a portion of the joint property alleged to have been dealt with by one of the co-owners without the consent of the other should be restored to its former condition a plaintiff must show that he has sustained, by the act he complains of, some injury which materially affects his position. See Nooury Lall Chuckerbutty v. Bindabun Ghendur Chuckerbutty(1), Shamnugger Jute Factory Co., Ltd. v. Ram Narain Chatterjee(2), Joy Chendar Bukhit v. Bippro Churn Bukhit(3) Brahmamoyee Chaudhurani v. Gopi Mohan Rai Chowdhury(4) and Paras Ram v. Sherjit(5). It was contended by Mr. Kulwant Sahay on behalf of the appellants that the last mentioned case was virtually overruled by the Rule Bench of the Allahabad High Court in the case of Shadi v. Anup Singh(6). In that case it was found by the final Court on facts that the defendant was building upon land which was in excess of the share that would come to him on partition, and that on partition the plaintiff could not be adequately compensated. Therefore the plaintiff succeeded in establishing that, by the act complained of, he did sustain an injury which materially affected his position. The actual decision therefore is consistent with the rule which I have deduced from the cases and falls within the ambit of that rule, but there are certain observations in the leading judgment of Edge, C.J, which support the arguments put forward on behalf of the appellants. So far as the observations are concerned, all that say is that they were not necessary for the decision of the case and that, with great respect, I am unable to adopt them for the purposes of this decision. The next case relied upon by Mr. Kulwant Sahay is that of Shibba Mal v. Naurang Mal(7) That was a suit by the plaintiff for the removal of a balcony which the defendant had built projecting over? considerable width of a passage which was the joint property of the plaintiffs and the defendant. Walsh, J., thought, that as the plaintiff had failed to show that he had sustained any injury by the act of the defendant, there could not be a mandatory injunction compelling the defendant to remove the balcony. Richards, C.J, and Bannerji, J., took a different view on appeal. In view of the long series of decisions both of the Calcutta High Court and Allahabad High Court, not one of which was considered or even referred to in the judgment delivered by Richards, C.J, I am unable to follow that decision. I am of opinion, therefore that if the case had arisen between the plaintiffs and defendant 3, the plaintiffs could not have asked for a mandatory injunction compelling defendant 3 to pull down the erections on 7 dhurs of land. In my judgment it makes no difference that the all and the chabutra have been erected, not by defendant 3, but by defendants 1, 3 and 2 by leave and license of defendant 3 for it is well settled that one joint owner “might license the doing of whatever he might do himself” See Wilkinson v. Haygarth(8), Job v. Pottom(9), Jacobs v. Sewards(10), and Sat Narayan Singh v. Anant Prasad(11).

3. It is suggested however by Mr. Kulwant Sahay that, as there is a denial of the plaintiff's title to plot 341, not only by defendants 1 and 2, but also by defendant 3, there is some sort of equity in favour of the plaintiffs which would entitle them to the mandatory injunction asked for. There is in my judgment, neither principle nor authority in support of this proposition. All that the cases lay down is that where there is a denial of the title of one co-owner by the other co-owners there is in law an ouster and where there is an ouster, the co-owner ousted is entitled to a decree, for joint possession. In this case the plaintiffs have got a decree for joint possession. But they go further and the that has been argued on their behalf is that where a co-owner A in denial of the title of co-owner B allows a stranger C to erect a building on the land jointly held by A and B, B is entitled, by reason of the denial of his title, to a mandatory injunction, compelling C to demolish the building so erected.

4. In my judgment the solution of the problem must still depend on whether any substantial injury has been sustained by B, and the Court will proceed to solve the problem unhampered by any consideration of the denial of the plaintiff's title. In this case the Courts have concurrently come to the conclusion that the plaintiffs have sustained no injury whatever by the erection of a wall and chabutra on seven dhurs of land. On this finding the plaintiffs' suit for demolition of the wall and chabutra must fail.

5. The only other question that has been argued before me is that the lower appellate Court erred in setting aside the finding of the Court of first instance on the question of the shares held by the plaintiffs and defendant 3 respectively in plot 341. For the reasons which have been given by the learned Judge on appeal, I am of opinion that it was not necessary for the Court of first instance to record any finding on that point. The result is that these analogous appeals-fail and must be dismissed with costs.

V.S/R.K

6. Appeals dismissed.