G.C. Das, J.
1. Defendants 2, 3, 6, 17, 20 and the legal representatives of defendant No. 1 filed this appeal against the judgment of the learned Additional District Judge, Cuttack dated 25-4-59, decreeing the plaintiff's suit. The plaintiffs accordingly were directed to be put in joint possession of the lands in suit with the defendants. Defendants 1 and 2 were directed to remove certain structures constructed by them on the suit lands.
2. Plaintiffs in their representative capacity on behalf of the Brahmin Lakhrajdars of mouza Ichhabatipur Sasan filed a suit for declaration that they were entitled to joint possession with the defendants and prayed for a permanent injunction, and for a direction to the defendants to remove the structures, if any, over the suit lands within the stipulated period to be fixed by the Court. Defendants are also Brahmin Lakhrajdars of the same village. Thus, all the Brahmin Lakhirajdars of Ichhabatipur Sasan were jointly recorded in respect of 22 acres of land called Kakudi Khamar Chak. The disputed land is three acres in extent out of the aforesaid 22 acres. The entire area of 22 acres is recorded as a common Lakhraj land of Brahmin Mahajans who have got unequal shares therein. Ichhabatipur Sasan is admittedly situated in flooded area. There was a proposal about forty years ago that the Brahmin Lakhrajdars should have a planned Basti and that they should shift to the new site. Accordingly, a proposal was made to have a planned Basti at Baunspal Chak. Plans were accordingly prepared, but for certain reasons it was not given effect to.
Thereafter the Brahmins wanted to shift to Kakudi Khamar Chak. The northern portion of this Chak is 15 acres in extent. A school house had been constructed in that area and it was felt that the northern portion would not be suitable for habitation. Thus, there remained only seven acres of land situated on the southern side of the Chak. The Brahman inhabitants agreed to divide these seven acres among themselves for residential purposes. Since they could not arrive at an amicable decision amongst themselves, they authorised Sri K.C. Singh Deb, the then Sub-divisional Officer of 'Kamakhyanagar in the district of Dhenkanal to effect the division of lands amongst them. Accordingly, they executed an agreement (Ex. 2) on July 29, 1952, in favour of Sri K.C. Singh Deb. He made certain attempts in this direction, but before anything could be finalised he was transferred and was succeeded in his office by Sri Suryakanta Mahanty.
Sri Mohanty proceeded to make the division of the southern seven acres of land amongst the Brahmins Mahajans. The plaintiffs' allegation is that in doing so, he allotted the best three acres out of that land to the defendants. According to them, Exhibit 2 was executed in favour of Sri K.C. Singh Deb in his personal capacity and not in his official capacity as the Sub-divisional Officer and therefore after Sri Singh Deb's transfer his successor in office did not ipso facto acquire any right to make the division, and as such the allotment made by him is beyond his authority and is invalid. Plaintiffs further stated that after the allotments were made the defendants put some 'Subhakuntha' on the lands allotted to them. Accordingly, the plaintiffs were constrained to file the suit for declaration that the suit-land is joint property of both parties, for recovery of possession of the same and for an order directing the defendants to remove the structures raised by them, presumably the Subhakuntha, on the suit land and for a permanent injunction restraining them from making any construction thereon in future.
3. The defence of the defendants in essence was that Sri K.C. Singh Deb was authorised to make the division not in his personal capacity, but in his official capacity and that therefore after his transfer it was within the jurisdiction of his successor Sri Surya Kanta Mohanty to make the division. They further averred that the division by Sri Mahanty was effected with the full knowledge of the plaintiffs. Thus, they contended that the suit is not maintainable in law under the provisions of the Arbitration Act. In any case, the defendants being the co-owners of the disputed land along with the plaintiffs the latter are not entitled to claim the reliefs prayed for by them without bringing in a properly constituted suit for partition.
4. The learned Subordinate Judge who heard the suit at the first instance came to the conclusion that Sri K.C. Singh Deb was authorised to effect partition of the suit land in his official capacity as the Sub-divisional Officer of Kamakhyanagar and not in his personal capacity, and therefore, his successor Sri Mahanty had the authority to make the partition among the co-sharers. He, however, held that Ext. 2 which conferred the authority on Sri K.S. Singh Deb clearly laid down that the allotments made by Sri Singh Deb should be strictly according to the distribution previously made in Baunspal Chak and that in view of the fact that Sri Mahanty did not make the allotment in the aforesaid manner the allotments made by him are not valid and binding on the parties. Accordingly, he allowed the prayer of the plaintiffs for joint possession of the suit lands, and also directed the defendants 1 and 2 to remove the structures raised by them on the suit land and restrained them from making any construction till their shares were defined and specified in a properly constituted partition suit.
It may be remembered here that during the pendency of the suit in the trial court, defendants 1 and 2 on their application, were permitted to make some Kucha constructions only on one-third of the area allotted to them by Sri Mahanty and that too at their own risk subject to the result of the suit. The learned Subordinate Judge found that this order was violated by defendants 1 and 2 by making construction on a larger area of the land. Taking all these circumstances into consideration, he thought that there was no equity in favour of the defendants. Being aggrieved by this decision, some of the defendants filed an appeal which was eventually heard by the learned Additional District Judge of Cuttack. Two questions arose for consideration before him; (1) Whether Sri K.C. Singh. Dey was appointed as an arbitrator under Ext. 2 in his official capacity; and (2) whether the ultimate partition effected by the arbitrator was in accordance with the authority given to him.
5. With regard to the first question the learned Judge in view of Ext. A, dated 22-11-52 coupled with the terms in Ext. 2 came to the conclusion that Sri Mahanty had the authority to divide the lands as the reference was made to Sri Singh Deb in his official capacity. He, however held that this authority was limited to the terms of Ext. 2. With regard to the second point, he came to the conclusion that the division made by Sri Mahanty was not in terms of Ext. 2 and accordingly he held it to be invalid and not binding on the parties. There, however, arose a question whether in the circumstances the plaintiffs were entitled to the further reliefs claimed by them. The learned Judge held that the plaintiffs are entitled to a permanent injunction and the defendants 1 and 2 should remove the structures raised by them On the suit land during the pendency of the suit. It is against this judgment that the present second appeal is directed.
6. Mr. M.S. Rao, learned counsel on behalf of the appellants did not challenge the findings that Sri K.C. Singh Deb was appointed as an arbitrator in his official capacity, and accordingly Mr. Mohanaty, his successor in office, had the authority to make the allotment. He also did not challenge the finding that Sri Mahanty had not made the allotment in accordance with the terms in Ext. 2. He, however, challenged the latter portion of the judgment by which the plaintiffs were granted the injunction and the defendants 1 and 2 were directed to remove the structure raised by them on the suit land and not to make any further construction on the same till their shares were defined and specified in a properly constituted partition suit.
7. Two contentions were raised by Mr. Rao in this connection; (1) The defendants being co-owners of the disputed property have the right to occupy and make the construction on joint lands and that the plaintiffs cannot possibly object to the same, particularly when it is not established that the land was in any way deteriorated due to such construction; and (2) The temporary injunction should not be granted if permanent injunction could not ultimately be granted in the suit itself.
8. In support of his first contention, Mr. Rao sought to rely upon a long list of cases which do not quite support his contention. The law is well-settled that there is no statutory law in this country governing the relations among the co-sharers inter so about the common land; and the matter must be regulated by the rules of justice, equity and good conscience. It must be remembered that while considering a question of injunction, each case must be decided upon its own peculiar facts and it would be left to the Court to exercise its judicial discretion upon proof of circumstances showing on which side the balance of convenience lies. Before dealing with the question as raised by Mr. Rao, I would like to state certain facts which are relevant for purposes of the present case.
During the pendency of the suit an application under Order 39, Rule 1, Civil Procedure Code was filed by the plaintiffs seeking a temporary injunction against the defendant; in other words, the plaintiffs prayed for restraining the defendants from erecting any house over the suit land till the disposal of the suit. All the construction that was made on the disputed land before the suit was filed was only a 'Suvakhunta.' The learned Munsif gave an absolute injunction in favour of the plaintiffs, but observed that the Court would give them permission to construct if they do not exceed their allotment. Against this order the plaintiffs carried an appeal. It is necessary here to state the terms in which the temporary injunction was granted by the learned Munsif. They are as follows:
'In view of these circumstances, I am inclined to grant temporary injunction restraining the defendants from altering the character of the suit land pending the decision of this suit by building houses thereon--and I order them to be restrained accordingly. If the defendants 1 to 3 want to erect houses over 1/3rd of the land allotted to each of them with the undertaking to demolish them in case they are not entitled to it, they may so apply to have the injunction order varied on proper? application to build only over 1/3rd of the plot allotted to them by the S. D. O. and after giving a specific undertaking to remove them when required, to do so in case they are found to possess more than their legitimate share in the lands as their case stands in the different footing from that of the other defendants as their houses are stated to be situated as to be likely to be washed away by the next flood.'
The learned Subordinate Judge who heard the appeal against this order modified it to the extent that defendants 1 to 3 may be allowed to build only temporary structures (not pucca) on land as directed by the learned Munsif on condition that they would do so entirely at their risk subject to the ultimate result of the suit and adjudication of the rights and interests of the parties as per ultimate findings of the Court. Thus, it is fairly clear that in this case the defendants were permitted to put up certain structures at their own risk subject to the result of the litigation. The suit has since been decreed in favour of the plaintiffs. Thus, the question arises whether the defendants should be restrained from making any construction on the suit land till their shares are defined and specified in a properly constituted partition suit.
9. Mr. Rao sought to rely upon certain cases where there was a question of ouster. In most of these cases it has been held that when land is held in common by co-sharers each co-sharer is entitled to cultivate in his own interest in a proper and husbandlike (sic) manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharer from their proprietary right as co-sharers in the lands. When co-sharers cannot agree how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands. No co-sharer can, as against his co-sharer, obtain any right of permanency in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.
In the well known Watson's case decided by the Privy Council and reported in 17 Ind App 110 (PC), Robert Watson and Co. v. Ham Chund Dutt, it was held by Sri Barnes Peacock that where an estate in Bengal was held by plaintiff and defendants as tenants in common, and defendants were in actual possession and cultivation of part of such estate as if it were their separate property and it appeared that the defendants has resisted the plaintiffs' entry upon such part, not in denial Of their title, but to protect such cultivation from wilful interference, such resistance does not entitle the plaintiffs to a decree for joint possession, or to an injunction. Where no specific rule exists, the Courts are to act under the Bengal Regulations, according to justice, equity and good conscience. Consistently with that rule one tenant in common cannot be restrained from cultivating a portion of the lands not actually used by another nor can one tenant in common be allowed to appropriate to himself the fruits of another's labour or capital. This Case was followed in a subsequent decision of the Board in the case of Midnapure Zamindary Co. v. Naresh Narayan Roy, 51 Ind App 233: (AIR 1924 EC 144).
The same point cropped up before the Allahabad High Court which was decided by a Full Bench of that Court in the case of Shadi v. Anup Singh, ILR 12 All 436 (FB). The facts in that case were that one of the several co-sharers in a Mahal having begun to erect certain kucha buildings upon the common land another co-sharer three or four days after the building had commenced, brought a suit for injunction to restrain the continuance thereof on the ground that the defendant was ousting the plaintiff as a co-sharer from a portion of the common land. It was found that the defendant was building upon the land which was in excess of the share which would be given to him on partition and that on partition the plaintiff could not adequately be compensated. In these circumstances it was held by Sir John Edge, C. J. that the plaintiff was entitled to a perpetual injunction restraining the defendants from proceeding further with the building and directing that the building so far as it proceeded be pulled down and prohibiting the defendant from building on the land as exclusive owner at any future time.
Subsequent to this decision there was another Full Bench decision of the same High Court reported in Rambahadur Pal v. Ram Shankar Prasad, ILR 27 All 688 (FB). What was decided in that case was that in a suit by co-sharers for demolishing of a building as having been recently erected without their consent on common land by another co-sharer the court found that the building had been erected, as alleged by the plaintiff, but refused to grant them a mandatory injunction upon the ground that the area was reclaimed by the appellant defendant, and that others who have done the same have been allowed to build on the area thus reclaimed without any objection and that no special damage was done and that this was not a valid reason for refusing to grant a mandatory injunction and that such refusal was under the circumstances a good ground of appeal within the meaning of Section 584 of the old Code of Civil Procedure.
The Allahabad view as stated in ILR 12 All
430 (FB) was not approved by the Calcutta High Court and was expressly dissented from the case of Akshay Kumar v. Bhajgobinda Saha, AIR, 1930 Cal 341. In that case Mukherji and Mallik, JJ. held that there is no such broad proposition that one co-owner is entitled to an injunction restrain-ting other co-owner from exceeding his rights absolutely and without reference to the amount of damage to be sustained by one side or the other from the granting or withholding of the injunction. In the matter of injunctions, there is a considerable difference between a case in which the other co-sharers acting without diligent watchfulness of their right, seek, by injunction, to prevent the erection of a permanent building and a case after a permanent building had been erected at considerable expenses they seek to have it removed. Even though a case falls within the former category, unless there is ouster or other substantial injury, no restraint should be put and no injunction should be granted. Sole occupation by itself is not ouster unless it is attended by an assertion of a hostile title.
The Calcutta High Court in a recent decision in the case of Renupada Saha v. Oramba Pada Mandal, 62 Cal WN 816 following the decision in the Watson's Case, 17 Ind App 110 (PC) and the Midnapore Zamindary Co's case, 51 Ind App 293: (AIR 1924 PC 144) held that an exclusive use of joint lands by some co-sharers may be the foundation of a claim for compensation by other co-sharers who are not in possession and there need not be any ouster of their title. Such ouster is necessary only in suit for joint possession or for injunction. Thus there having some divergence of opinion the point was again referred to another Full Bench of Allahabad High Court in the case of Chhedi Lal v. Chhotey Lal, AIR 1951 All 199 (FB). Two questions were referred to the Full Bench in that case; themain question being whether when one of several co-sharers without the consent of the other co-sharers, raises a construction upon, joint land which till then had been in the cultivation of tenants or had been lying fallow, any of the other co-shares can get the building demolished, and (2) what are the conditions for the application to such a case of the doctrine of estoppel by acquiescence.
We are not concerned with the latter question. The learned Judges after referring to the different views taken by different judges of their own Court and after referring to the decision in Watson's case, 17 Ind App 110 (PC) and Midnapur Zamindary Co's case, 51 Ind App 293: (AIR 1924 PC 144) as decided by the Privy Council proceeded to consider the Calcutta view as reported in AIR 1930 Cal 341 and ultimately they came to the conclusion;
'As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the court according as the circumstances established in the case justify. The court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary, if material and substantial injury will be caused to the defendant by the granting of the relief the Court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the court to exercise its discretion upon pronf of circumstances showing which side the balance of convenience lies. That the court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to law down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted. Relying on this Full Bench decision of the Allahabad High Court a single Judge of the Punjab High Court in the case of Puran Chand Sant v. Nityanand, AIR 1958 Punjab 460, took the view that a co-owner is not entitled to an injunction restraining another co-owner from exercising his rights in the common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be sustained by the one side or the other from the granting or the withholding of the injunction. While a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to relief for demolition and injunction will be granted or withheld by the court according as the circumstances established in the case justify. This being the clear position of law there does not appear to be any force in the first contention of Mr. Rao.
10. With regard to the Second Point, Mr. Rao sought to rely upon a decision of the Patna High Court reported in Jogeshar Jha v. Mahtab Singh, 7 Pat LT 811: (AIR 1926 Pat 516). That was a case which was remanded for retrial. The passage on which Mr. Rao sought to rely runs as follows:
'The appellant is however not prejudiced. He will have the right to challenge this order when the matter again goes before the learned Subordinate Judge. If the learned Subordinate Judge decides against him and passes a decree in accordance with his judgment, he will have the right to challenge the order of remand in this Court hereinafter.'
I do not see even on principle how this case can be of any help to the contention of Mr. Rao.
11. What really emerges from the above discussion is that an injunction can be granted in case of an ouster. In other cases where ouster is not pleaded the Court is to examine the equities between the parties and pass the order in the judicial discretion as appears proper in the circumstances of each case. In all the cases referred to above, either the taking of possession, or cultivation of the land or putting up certain construction on the land held by a co-owner was done before the institution of the suit. In the instant case all that was done by the defendant was to put certain 'Subha Khnti'. It way only during the pendency of the suit that the defendants were allowed to put certain temporary structures with the permission of the Court subject to the ultimate result in the suit. According to the plaintiff the lands on which the Subhakhunta is put was the land which was allotted by Sri Mohanty to the defendants and that they were the best lands in that area. Sri Mahanty's award has been set aside as a result of the suit. The defendants cannot now claim any equity after the result of the suit had gone against them. They cannot also now be allowed to take advantage of the Court's order by permitting them to put up certain kutcha structures.
The defendants have now raised the constructions on the disputed land as alleged by them in assertion of their supposed right to that land on the ground that it has been allotted to them by the then Sub-divisional Officer and that they are entitled to construct the same on their own right. Their intention clearly was therefore not to hold the land as joint owners, but to hold the same in their own right to the exclusion of the other co-sharers. This is apparent from paragraph 10 of their written statement in which, it is stated:
'That these defendants are interested in the following plots which were allotted to them by the award and they have got no concern with the other land claimed in the suit.'
It is only when the matter came to court that they put forth the alternative plea that in any case they are entitled to hold the land till the matter is decided in a properly constituted partition suit.
12. In view of the law as stated above and the circumstances of the case, there is no manner of doubt that the defendants 1 and 2 are liable to remove the structures raised by them during the pendency of the suit and they are to be restrained from making any constructions in future on the suit-land till their shares are defined in a properly constituted partition suit.
13. Thus the judgment of the Learned District Judge appears to be unassailable and the appeal is dismissed with costs.