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Kazim HusaIn Vs. Ram Sarup and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All877
AppellantKazim Husain
RespondentRam Sarup and anr.
Cases ReferredJai Narain v. Jafar Beg
Excerpt:
- - 2. the trial court dismissed the suit on the ground that the plaintiff had failed to show that he had suffered any special damage......judge of ghazipur. the facts found in the lower appellate court are these: the plaintiff and the defendants are joint owners of the plot in suit. about two years before the action was brought by the plaintiff the defendants started to build a house on a part of the land within the zamindari which was parti or waste land. they proceeded with their building without any objection on the part of the plaintiff and spent some rs. 1,300 upon it. when the building was almost completed the plaintiff brought an action for a mandatory injunction directing the defendants to demolish the building and so to establish their joint possession. it is to be noted that the plaintiff was heavily indebted to the defendants and both the trial court and the lower appellate court have found that the reason for.....
Judgment:

Young, J.

1. This is a plaintiff's appeal from the Subordinate Judge of Ghazipur. The facts found in the lower appellate Court are these: The plaintiff and the defendants are joint owners of the plot in suit. About two years before the action was brought by the plaintiff the defendants started to build a house on a part of the land within the zamindari which was parti or waste land. They proceeded with their building without any objection on the part of the plaintiff and spent some Rs. 1,300 upon it. When the building was almost completed the plaintiff brought an action for a mandatory injunction directing the defendants to demolish the building and so to establish their joint possession. It is to be noted that the plaintiff was heavily indebted to the defendants and both the trial Court and the lower appellate Court have found that the reason for the plaintiff's action was not so much his desire to enforce his right as joint owner but rather to bring pressure to bear upon the defendants in order that they might give up some portion of the debt. The question for determination is whether a mandatory injunction should issue, directing the defendants to remove the building.

2. The trial Court dismissed the suit on the ground that the plaintiff had failed to show that he had suffered any special damage. The lower appellate Court dismissed the plaintiff's appeal on the ground of the plaintiff's acquiescence.

3. In my opinion, on the facts of this case, neither the trial Court nor the lower appellate Court came to a correct conclusion in law. It is clear that the authority, Parsram v. Sherjit [1887] 9 All, relied upon by the trial Court has been overruled in subsequent decisions of this High Court, e.g., in Ram Bahadur Pal v. Ram Shankar Prasad [1905] 27 All. 688, which was a Full Bench decision. With regard to acquiescence the law has been laid down once and for all in Willmott v. Barber [1880] 15 Ch. D. 96. The decision in that case lays down several rules for determining whether acquiescence has taken place or not. The onus would be upon the defendants to show: [1887] 9 All that they had made a mistake as to their legal rights, [1905] 27 All. 688 that they had expended some money or done some act on the faith of their mistaken belief, [1880] 15 Ch. D. 96 that the plaintiff knew of the existence of his own right which was inconsistent with the right claimed by the defendants, (4) that the plaintiff knew of the defendants' mistaken belief in his rights and (5) that the plaintiff must have encouraged the defendants in their expenditure of money directly or by abstaining from asserting his legal right. In this case it is clear that the necessary elements are lacking. There is no evidence for instance as to whether the defendants made a mistake as to their legal rights. The case of Willmott v. Barber [1880] 15 Ch. D. 96 has been followed in this High Court in Jai Narain v. Jafar Beg : AIR1926All324 .

4. While undoubtedly one joint owner can, according to the decisions of this Court, obtain an injunction ordering another joint owner to demolish structures built without permission upon the joint land, the granting of such an injunction is discretionary. Whether an injunction should be granted depends on the facts of each case. In all the cases to which reference has been made the suit has been brought without unreasonable delay. In this case there was a delay of nearly two years in bringing the suit, and, although that fact by itself does not in law amount to acquiescence, it is very material as to whether or not the discretion of the Court should be used in favour of the plaintiffs. Further when, as in this case, it is also found as a fact that the delay was deliberate on the part of the plaintiff, and for an improper motive, it is clear that the Court ought not to assist the plaintiff by granting an injunction. An injunction is an equitable remedy and the plaintiff does not come into Court with clean hands. This principle is laid down for India in Section 56, Specific Relief Act, where the issue of an injunction is prohibited if the conduct of the applicant has been such as to disentitle him to the assistance of the Court.

5. It is clear in this case that an injunction should not be granted. The plaintiff has his remedy in a suit for partition. I agree with the result arrived at in the two lower Courts but on different grounds. The appeal is dismissed with costs. I refuse the appellant's application for leave to appeal under the Letters Patent.


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