Norman Macleod, Kt., C.J.
1. The plaintiffs sued to obtain a perpetual injunction restraining the defendant from taking possession of 5 Gunthas of land on which traces of their houses were situated towards the Northern and Southern sides of the field described in the plaint. It appears that the plaintiffs leased to the defendant portion of a certain Survey Number on the 22nd October 1905. They referred to a certain field out of which 37 Gunthas were leased to the defendant, reserving, as the lease says, two Gunthas to the plaintiffs. Out of that one Guntha was towards the North and one Guntha was towards the South. The plaintiff might reside on that land. It appears that the plaintiffs had obtained leave to build before the date of the lease on two Gunthas, but after the lease was given to the defendant, it was found that they had built not on two Gunthas only, but on five Gunthas altogether, and in 1912, the Collector ordered them to remove the buildings on the additional three Gunthas. But it has been found as a fact in both Courts that the plaintiffs have been ever since the date of the lease in possession of those five Gunthas, although the defendant may have complained that they were entitled to throe out of those five Gunthas, and the plaintiffs under the terms of the lease were only entitled to retain two Gunthas for their buildings, and the plaint distinctly states that all that the plaintiffs complained of against the defendant was that he wanted to take possession of those three Guuthas so as to make up the 37 Gunthas mentioned in the lease, The plaintiffs do not state the plaint that the defendant had taken any actual steps towards interfering with the plaintiffs' possession. Therefore it is quite clear that the suit is framed as a quiet timet action, and none of the conditions which must exist before a quia timet action can be said to lie exists in this case. The opposite party must do something towards infringing the plaintiffs' rights, or it must be so clear that he is on the point of doing something which will infringe the plaintiffs' rights, so that consequently there must be the prospect of irremediable injury being suffered by the plaintiffs unless they take proceedings to stop the defendant's action. Here there is no evidence whatever that the defendant has taken any steps towards obstructing the plaintiffs from building on these three Gunthas, or that he has entered on the land, or that he has done anything more except complaining that he has not got the whole of the land which was leased to him in 1905. So that there was no cause of action on which the suit could be founded. That point does not seem to have been taken in either of the lower Courts. Evidently the Courts looked upon the defence as really being in itself a counter-claim for specific performance of the lease or for a reduction of the rent. The order of the lower appellate Court must be set aside and the suit dismissed. As there is no ground on which the Court could grant the injunction which was granted by the decree, and as this point was not really taken until it was taken by the Court, there will be no order as to costs.
2. I concur.