Tek Chand, J.
1. On a reference made by P. C. Pandit J. this case has been placed before this Bench for disposal. The question of law which has been referred to us is in the following terms :
'If in spite of protest by one co-owner, another co-owner raises a building on a portion of joint land, not exceeding his own share therein can the aggrieved co-owner obtain a decree for demolition of that building without proving special damage or substantial injury to him?'
As the whole case is before us for decision, the facts of this case may be stated in detail.
2. The following pedigree-table will show the relationship of the parties;
| | | |
Daya Ram Sant Ram Gonda Ram Narain Singh
plaintiff deft. No. 1 | |
| | deft. No. 2
Siri Ram Singh Bansi Lal
deft. No. 3 deft. No. 4
In the Court of first instance Daya Ram plaintiff instituted a suit against the defendants alleging that the site shown as Alif Be Jeem Dal in red in the plan attached to the plaint was joint of the parties and was part of Khasra No. 11340/2066 and was in their joint possession. The parties are descendants of Nagina Ram who was father of plaintiff and of defendant No. 1 and grandfather of defendants Nos. 2, 3 and 4. It was averred in the plaint that agricultural land and abadi area belonging to the parties was joint though for the sake of Convenience their cultivation and residence were separate. The area in dispute is taur, a vacant plot, measuring 12' x l2 1/2' and is claimed by the plaintiff to be joint of the Parties.
In the plaint, which is dated 19th March, 1958, and which was presented on 22nd March, 1958, it was alleged that 'yesterday', that is, on 18th March, 1958, the defendants dug foundations and when the plaintiff objected they threatened to use force. In 1954 also the defendants wanted to construct on this vacant site and the plaintiff served a registered notice asking the defendants not to construct any building without the plaintiffs consent and to this Sant Ram defendant replied that he would obtain the plaintiff's Consent beforehand. The plaintiff maintained that the defendants could not construct on the joint property without his consent, and on the above facts, the plaintiff prayed that the foundations which were dug under threat of force should be filled.
It was also prayed that if during the pendency of the suit, the defendants complete their building, the same should be ordered to be demolished and they should further be restrained from Constructing on the joint land in future. On the same day an application was made praying that ft temporary injunction should be issued restraining the defendants from constructing on the site pendente lite. On 22nd March, 1958. the Court of first instance issued temporary injunction enjoining the defendants from making further construction till disposal of the application. The defendants did not file areturn and did not apply for vacation of the temporary injunction granted.
3. On 24th April, 1958, written statement was presented by the defendants alleging that the site in suit was not joint of the parties. They said, that over 25 years ago a private partition took place and this area fell exclusively to the defendants' share and they had been in possession ever since. The private partition was by metes and bounds and each party had been in separate possession of its respective portions for over 25 years. In March, 1958. a portion of the thatched roof had fallen down in a storm and it was this thatched roof which was repaired by the defendants and no new structure was raised by them though they were entitled to do so.
They maintained that the story of joint possession was entirely wrong and averred that the plaintiff had no right whatsoever to this Property. It was admitted that, five or six years ago a notice was received from the plaintiff, but as the defendants had been in possession for a considerable time previous to that, it was not considered necessary to reply to the notice. The defendants thus took their stand on the plea that the property in suit was no longer joint and it was owned and possessed by them exclusively.
4. On the above pleadings the trial Court framed the following issues :
1. Whether the suit property is jointly owned and possessed by the parties?
2. Whether the suit is within time?
3. Whether there has been a private partition between the parties of the suit property? If so its effect?
4. Whether the plaintiff is estopped from suing by reason of his act and conduct?
5. Plaintiff Daya Ram, besides producing the local Sarpanch, also appeared as his own witness and deposed that the property was jointly owned and possessed and that on 18th March, 1958, Sant Ram defendant No. 1 had started the digging operations and did not desist despite his asking him to do so. He also stated that he had obtained a temporary injunction from the trial Court but the defendants completed the building. He said that the agricultural land of the parties had been partitioned but not the residential areas and that the site in dispute was joint. The plaintiff placed On the record copy of jamabandi, Exhibit P. 5, for the years 1953-54, and Khasra girdwari, Exhibit P. 6, which shows joint Possession of the parties in Kharif 1954-55 up to 1957-58.
6. The defendants produced two witnesses who deposed that the private partition between the parties, with respect to the abadi area and land, had taken place 25 or 26 years ago and according to D. W. 1 construction on the site in dispute was14 or 15 years old.
7. Defendants Sant Ram and Siri Ram Singh also appeared as their own witnesses. Sant Ram defendant maintained that the residential areas had been partitioned 20 or 21 years ago and there had been a house on the site in dispute for the last15 years which had been in their separate possession ever, since the partition. He said that there is no property now left which is joint of the parties. It was also his contention that a portion oi this house had fallen down which he had got repaired.
The other defendant Siri Ram Singh made a similar statement. He also said that when temporary injunction was issued the walls had been built hut roof had not yet been put and this was done later. There is thus clear indication from his statement that building operation had been continued despite the plaintiff's protests and also in disregard of the order of temporary injunction.
8. The trial Court found that Khasra No. 11340/2066 of which the property in suit forms a part is still jointly owned and possessed by the parties. The area of the entire Khasra is 2 bighas 19 biswas in which the parties have l7/36ths proprietary share though they are in possession of the entire Khasra. The trial Court also referred to the report of the process-server to the effect that the order of temporary injunction had been duly conveyed to the defendants and this fact is not denied by defendant Siri Ram Singh.
On the above evidence, it was held, that the site in question was jointly owned and possessed by the parties, and, the structure raised by the defendants was recent and despite the plaintiff's protests and in contravention oi the order of temporary injunction. The Sub-Judge has decreed the suit and has ordered demolition of the building. Defendant Sant Ram filed appeal to the Senior Sub-Judge before whom the third issue relating to claim of previous private partition was not pressed. The lower appellate Court agreed with the finding of the Court of first instance, that the defendants had built on the plot in dispute in spite of the plaintiff's protest and the house was completed after the service of injunction order.
The Senior Sub-Judge also found that the property in dispute was jointly owned and the defendants built upon it without the consent of the plaintiff and had not pleaded any specific custom in justification of their act and had placed their sole reliance upon private partition 25 years ago. As the property was jointly owned and possessed by the parties, the Senior Sub-Judge agreed that the defendants had no right to build upon it in the circumstances of the case. The issues raising the plea of limitation and estoppel were found against the defendants' for want of proof. The appeal was consequently dismissed. This second appeal to this Court has been filed by Sant Ram alone.
9. Before us the learned counsel for the appellant has confined his arguments to the legal question under reference and has argued the case on the assumption that the site in suit Over which the appellant had raised the building despite the protests of the plaintiff was jointly owned and Possessed by the parties. Similarly the learned counsel for the plaintiff-respondent has proceeded on the assumption that the area under the newly constructed building does not exceed the defendants' share and further that no special damage or substantial injury has been sustained by the 'Plaintiff as a result of the defendants' conduct.
He has, however, maintained that as the defendants had persisted in raising the structure despite the protests of the plaintiff and even in defiance of the injunction order issued by the Courtthere are no equities in favour of the defendants on account of which the Court should desist from making an order for demolition. It is in the light of these facts that the points in controversy have to be examined.
10. The learned counsel for the appellant wants the question under reference to be answered in the negative and the plaintiffs counsel has stressed that applying the correct law the question should be answered in the affirmative. Undoubtedly, there is a sharp conflict of decisions and it will be a futile endeavour to reconcile them. On both sides a large number of authorities have been cited.
The learned counsel for the appellant has placed his reliance upon Hidayat Ali Khan v. Basit Ali Khan, 54 Pun Re 1892, Narain v. Mt. Gaindo, AIR 1918 Lah 304, Majju v. Teja Singh, AIR 1918 Lah 51, Sheo Ram v. Mt. DhaPan, AIR 1920 Lah 227, Ahmad Gul v. Rahim Khan, AIR 1926 Lah 52, Sobha Ram v. Waryam AIR 1929 Lah 499, Mohta v. Pooran, AIR 1930 Lah 861, Abdul Rahman Khan v. Daulat Khan, AIR 1935 Lah 250, Paras Ram v. Sherjit, ILR 9 All 661, Nocury Lall Chuekerbutty v. Bindabun Chunder Chuckerbutty, ILR 8 Cal 708, Joy Chunder Rukhit v. Bippro Churn Rukhit, ILR 14 Cal 236, Akshay Kumar Shaha v. Bhajagobinda Shaha. AIR 1930 Cal 341, Anand Chandra Sen v. Parbati Nath Sen, 4 Cal LJ 198, Krishna Kumar Singh v. Padum Singh, AIR 1950 Pat 511 and Kala Singh v. Kahna, 60 Ind Gas 531 (Lah).
11. For the contrary view Shri D. N, Aggarwal, learned counsel for the respondent, has rested his contention on Shadi v. Anup Singh, ILR 12 All 436 (FB), Najju Khan v. Imtiaz-ud-Din, ILR 18 All 115, Muhammad Ali Jan v. Faiz Baksh, ILR 18 All 361, Ram Bahadur Pal v. Ram Shankar Prasad Pal, ILR 27 All 688 (FB), Ghasitu v. Sodhan Singh, 32 Ind Gas 690 : (AIR 1916 All 322) Shibba Mal v. Naurang Mal, 39 Ind Gas 739 : (AIR 1917 All 118), Ram Lal v. Md. Amir Musiafa Khan, AIR 1925 All 700, Darshan Lal v. Harkesh Singh, AIR 1951 All 338 and Israil v. Shamsher Rahman, ILR 41 Cal 436 : (AIR 1914 Cal 362) and out of the decisions of the Punjab High Court he has cited Manji v. Gulam Muhammad ILR 1 Lah 249 : (AIR 1920 Lah 34), which was affirmed on Letters Patent Appeal in Manji v. Gulam Muhammad, ILR 2 Lah 73 : (AIR 1921 Lah 157), Hayat Ali Shah v. Mt. Taj-ul-Nissa, AIR 1923 Lah 205, Kunj Lal v. Ramji Lal AIR 1927 Lah 416, Ali Jan v. Mohammad Ismail, AIR 1932 Lah 89, Mangat Ram v. Ghulam Hussain, 1936-38 Pun LR 679. Sundar Singh v. Harnam Singh, AIR 1939 Lah 514 and Bashambav Das v. Mulk Raj,- 1949-51 Pun LR 192.
12. The two sets of decisions quoted at the Bar are by no means exhaustive, they are merely representative. The first set of decisions cited on behalf of the appellant support the view that building raised, on a portion of the joint property should not be ordered to be demolished in the absence cf special damage or particular injury; and the fact that the plaintiff protested to the construction promptly is not pivotal. The second group of authorities propound the view that no co-owner can raise a structure on a portion of joint property without the acquiescence of the other joint Proprietors.
If a building is raised on the joint land to the construction of which the other joint owner has objected, an order of demolition should be passed except in cases where the plaintiff stood by and did not raise objections promptly. Sustaining special damage is not germane, if the character of the property is changed or, the plaintiff is excluded from exercising the right of use and enjoyment of the joint property.
13. Before examining the various authorities it will perhaps be appropriate to consider the distinctive features of co-ownership and the basic rules laying down the rights and obligations of the concurrent owners inter se.
14. A person's proprietary interest ia land may be either sole or in conjunction with others. In the former case he holds the land in severally, and in the latter case, the several owners simultaneously have concurrent interest. Sole or separate ownership has a single form, but co-ownership assumes several forms. English Jurists have treated co-ownership under four heads (i) joint tenancy, (ii) tenancy in common, (iii) Coparcenary, and (iv) tenancy by entireties. The joint tenancy of English law had two features, viz. the right of survivorship and the co-existence of the four unities of possession, title, time and interest.
The joint tenants of English law formed together as one person and had equal right to the whole of the land. The tenancy in common of English law was distinct from joint tenancy. In the former case there was no right of survivorship and the essential unity was only of possession and the other three unities may or may not be present. As there was no right of survivorship, the tenants in common held the land in distinct and specific shares which had not yet been divided among the co-tenants. They had thus separate shares in a single property which had not yet been partitioned among them. The common feature of both these forms of co-tenancy was that, while they lasted, no one could say which of them was the owner of any particular parcel of land.
15. It was the common feature of both these types of tenancy that the co-tenants whether joint or in common, were said to be seised according to law (French) 'per my et per tout' which signified that each co-tenant held nothing by himself and yet the whole, together with the others. If there were two of them, no one of them had seisin of one moiety and the other of the other half. Each had an undivided moiety of the whole and yet not the whole of an undivided moiety. In the words of Bracton, 'Quilibit totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se'. he who has everything has (in reality) nothing; of course, he (co-tenant) holds in common, the whole, and nothing in severally.
10. It may here be mentioned that the word 'tenant' is to be construed in the widest sense as a person holding or possessing land under right or title like an owner, and not in the restricted sense of temporary occupancy of some other's land, in subjugation to him.
17. The principle of joint tenancy, with its emphasis on the four unities, and the right of survivorship, is not known to Hindu law except in caseof coparceners of an undivided family. The approach to co-ownership was different according to the two schools. The Mitakshara recognised ownership of each coparcener over the whole of joint property and over each part thereof. This view lkeqnkf;d LoaRookn(Samudavik Svatvavad)or the doctrine of ownership in the whole and bears some similarity to joint tenancy of English law. On the other hand Dayabhaga adhered to the doctrine of ownership in specified shares in the undivided property izknsf'kd LoRookn (Pradeshik Svatvavad) having simlar features as in tenancy in common (vide Hindu Jurisprudence by Sen, pp. 145 and 146).
If any one of the coparceners enjoyed more of the joint property than was his due, he was not forced to surrender the excess (vide Hindu Law In Its Sources, by Ganga Nath Jha, Volume II, p. 608). The Courts in equity in England have leaned against joint tenancy in Preference to tenancy in common. But for purposes of present discussion, the distinction between the two forms of co-owner-ship is of no moment as the right of every co-owner to the possession of the whole subject to the equal right of others to similar possession, is the common feature of both types of co-tenancy in England as well as in this country.
The corollary, which follows from the principle, that each joint tenant is seised of the whole estate, is that everyone of them has a right to the enjoyment of every inch of the property and to the ownership of every undivided fraction till the severance takes place. It also follows that, whereas each co-owner is entitled to occupy the whole, in common with, the others, no one of them is entitled to the exclusive possession of any particular part of the property held in common. The equal right to the enjoyment of the entirety of joint property is subject to the limitation of the recognition of a similar right of use and enjoyment by the other co-owners.
In other words, a co-owner is bound, so to exercise his rights in the joint property, as not to interfere with the rights of the other co-owners. From this, it does not follow, that a co-owner is entitled to the exclusive possession of the whole or of any particular part, except, of course, by agreement or on partition, and in the latter event the co-ownership terminates. So long as a co-Owner recognises equal rights of the other co-owner he may enter upon the common estate and take possession of the whole, but this does not confer upon any one the right to exclude others, or, to appropriate to his sole use any particular portion of the common property.
18. It is true that it is of the essence of co-ownership that each co-owner is, in theory, interested in every bit of the common property howsoever infinitesimal, and is entitled to be in possession of every such part and parcel of the property jointly with others. From this, it does not follow, that a co-owner Can sue for eviction of the other merely off the ground of sole occupation of the joint property or of a portion thereof. Sole occupation in conceivable circumstances does not constitute an invasion of the rights of other co-owners. The effective user of joint property implies a division in space or in time.
In this view of the matter, neither the ejement of sole occupation of a land, nor the erection of a substantial building on it, even if this is done without the assent of the plaintiff, can necessarily furnish a cause of action against the defendant. An erection of a permanent Structure cannot invariably be treated as conclusive evidence of ouster, tor it may well be, that a property cannot be enjoyed without making extensive and substantial improvements. The test of ouster in such a case is whether the plaintiff has sustained substantial injury or his title has been denied (vide 4 Cal LJ 198, and the decisions cited in the judgment of Mookerjee, J. at pp. 205 and 206, Dwijendra Narain Roy v. Purnendu Narain Roy, 11 Cal LJ 189; 5 Ind Cas 171, Watson and Co. v. Ram Chund Dutt, ILR 18 Cal 10, Mohesh Narain v. Nawbut Pathak, ILR 32 Cal 837 and Kuverjee v. Rama, AIR 1925 Nag 145.)
19. In so far as a co-owner is entitled to the possession of the entire common property he cannot be dispossessed by maintaining an action for ejectment at the instance of the others, and this is so, even in those cases, where the portion of the common property in his exclusive occupation exceeds his share to which he would be entitled on partition. The remedy of the co-owners where they do not agree among themselves, either as to user or enjoyment in the event of exclusion is to sue for partition and for the settlement of accounts. In the event of an ouster of a co-owner the person ousted can maintain an action for joint possession though not for ejectment.
20. It is in consonance with rights implicit in joint ownership that one co-owner may be in exclusive possession of a parcel of property in excess of his share which might fall to him on partition, or even, he may be in exclusive possession of the entire joint property, Provided, however, that he concedes a similar right to the other co-owners. This right of exclusive possession exercised by a co-tenant exists so long as others are not ousted. It is only on proof of ouster or of clear denial of the title of the other co-sharers, that the exclusive or excessive possession of joint property ceases to be per tout, that is, on behalf of all, and such possession is no longer considered to be constructive of all co-sharers, for, it is then that the right of common enjoyment of the joint property is put in jeopardy.
21. The law permits a co-sharer to continue to remain, ad infinitum, in exclusive possession of a particular parcel and, subect to well recognised prohibitions, even make constructions on it. The exclusive possession for any length of time, in the absence of ouster, is not tantamount to an exclusive ownership. Exclusive possession of a co-owner is deemed to be with the consent of others. Of course, where by a mutual arrangement, between the co-owners, which is a matter of common occurrence, the co-owners choose to possess a separate parcel of the joint property in severally, such separate possession will not be interfered with at the instance of some co-sharers who may like to depart from the agreed settlement.
The Court, in such a case, will not interfere except in the case of an action for partition. In other words, the arrangement once arrived at, continues until it is abandoned with the consent of all, or, a co-sharer seeks remedy provided by suit for partition. It is always open to the co-owners to agree upon a particular mode or manner of enjoying their joint property (vide Midnapore Zamindari Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, Kameswari Dasya v. Sishuram Deka, AIR 1924 Cal 792 and Debendra Narayan Singh v. Narendra Narayan Singh, AIR 1920 Cal 610).
22. The next question is, what is ouster in the eye of law, in order to enable a co-owner out of possession, to sue the co-owner in exclusive possession for joint possession or partition. In the case of co-owners, the test of ouster is more exacting than in the case of strangers. Whereas in the latter case exclusive possession may be deemed sufficient to constitute adverse possession on the part of a stranger, a similar conduct on the part of a co-owner will be insufficient for basing the plea of adverse possession. The reason for this distinction is that in the case of co-owners the possession of one is held to be for the benefit of all. In Prescott v. Novers, (1827) 4 Mason 326, it was said that:
'The only difference between the possession of a co-owner and other cases is that, acts, which, it done by a stranger would per se be a disseisin, are in the cases of tenancies in common perceptible of explanation consistently with the real title; acts of ownership are not, in tenancies in common, acts of disseisin.'
Reference may also be made to Jogendra Nath v. Baladeo Das, ILR 35 Cal 961 and Prem Singh v. Teja Singh, AIR 1950 EP 252. As observed by their Lordships of the Privy Council in Hardit Singh v. Gurmukh Singh, AIR 1918 PC 1,
'the phrase 'exclusive possession' has an equivocal meaning * * * * * If by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more, must be referred to the lawful title possessed by the Joint holder to use the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members, Lachmeswar Singh v. Monowar Hossein, ILR 19 Cal 253 (PC) and Corea v. Appu-hamy, (1912) AC 230. If possession may be either lawful or unlawful, in the absence of evidence, it must be assumed to be the former'
Reference may also be made to Lakshminarasamma v. Rama Brahmam, AIR 1950 Mad 680 (689). In this context 'ouster' does not mean actual turning out or physical expulsion of the other. To constitute an ouster by a co-owner physical eviction is not necessary, so long as, the possession is attended by such circumstances, as to evince a claim of exclusive right and title in himself, and denial of right of the other co-owner and to the knowledge of the latter.
As to co-sharers, ouster must amount to an act of a total denial of the right of the person ousted, and to the latter's knowledge. The notice of knowledge of denial of the right has to be either actual, or, of such an open and notorious character as to leave no doubt of that fact on a reasonable enquiry.A repudiation of the relationship of co-ownership will serve to prove ouster.
23. The denial in the pleadings by the defendant of the plaintiff's status as co-owner, coupled with an allegation of title and possession in himself is sufficient proof of ouster. Adverse possession by ouster of a co-owner in exclusive possession commences when such a person repudiates the title of the others and asserts title to the entire property in himself. A claim of title by a co-owner on the basis of adverse possession will be supported when the possession, besides being actual and exclusive, is also hostile with notice to the co-owners of the former's adverse claim and when continued uninterrupted for the statutory period of twelve years.
24. Where co-ownership is denied, the rule that the possession of one co-owner is the possession of all no longer holds good. Similarly, an entry by a cosharer into possession not in recognition of simitar right of any other co-owner, but in denial of that right, will not enure to the benefit of those who have been excluded from possession (vide Basanta Kumari Dasya v. Mohesh Chandra Shaha 21 Ind Cas 621: (AIR 1914 Cal 283) and Ramchandra Saha v. Lakshmi Kanta Saha, AIR 1928 Cal 574.)
In short, an exclusive possession of a co-sharer, in order to amount to an ouster justifying an action on that ground, must amount to the assertion of a hostile title in himself and the denial of title in other co-owners to the letter's knowledge. The taking of exclusive possession of a portion of the joint property by a co-sharer and leaving sufficient area for the other co-sharers to take similar exclusive possession does not amount to ouster (vide Kamesh-war Narain Singh v. Janardhan Prasad Narain Singh, AIR 1925 Pat 492, Mst. Bhagai v. Bheosen, AIR 1925 Nag 240 and Chandra Kishore v. Biseswar Pal, AIR 1928 Cal 216).
25. In the matter of the user of the common property, it is not competent to a co-sharer to change the character of the land without the consent of the others (vide ILR 18 Cal 10 (PC), AIR 1939 Lah 514 and Harihar Prasad Singh v. Hitlat Singh, AIR 1940 Pat 617).
26. In this case the plaintiff has not chosen to institute a suit seeking either partition of the joint property or his right to joint possession. He has prayed for decree for mandatory injunction for the demolition of the structure. It is not unknown, that a person's legal rights are invaded by the defendant but Courts, in the exercise of their equitable jurisdiction, do not necessarily lend their assistance for the enforcement of such, rights, especially in cases, where the remedy sought is more disastrous than the wrong complained of.
Injunctive process is not available to the aggrieved party de cursu, as a matter of course, and as a matter of right. The grant of a relief is within the judicial discretion of the Court. An injunctive relief will not be available to a plaintiff who has been standing by without objecting to the violation of his rights by the defendant. Acts of acquiescence or laches stand in the way oF the grant of such a relief. It is after carefully weighing all the equities between the parties that the Courtsexercise their discretion in granting or denying a mandatory injunction.
27. Notwithstanding the amount of inconvenience to the defendant, where the injury done to the plaintiff is of so material a character that the restoration to status quo ante is the only suitable remedy, or, that the defendant has been guilty of sharp practices or unfair conduct, the Court will issue the injunction. Such relief is to be granted where the act complained of has been commenced and continued in the teeth of opposition of the plaintiff, or, in spite of the Court's order prohibiting this act.
In such circumstances, the Courts are inclined to exercise their discretionary powers in the plaintiff's interest. They will, however, desist where the injury complained of is comparatively trivial. Though Courts are reluctant to grant injunctions where the person injured will obtain a small benefit and the injunction will operate oppressively on the defendant, such a consideration will not weigh with tile Courts if the injury caused by the defendant is unwarranted and unprovoked.
In the matter of construction of unauthorised buildings, the Courts have been ordering demolition where the structure was raised against the known opposition of the plaintiff and whose right had been intentionally violated. Where the defendant has been guilty of such a conduct, injunction will issue irrespective of the question that its issuance will impose on the defendant an expense disproportionate to the benefit which would accrue to the plaintiff. It will thus be seen that the conduct of the parties in persuading the Court to grant or refuse injunction is very material.
Reference may be made to two English cases the observations in which are in pari materia. In Daniel v. Ferguson, (1891) 2 Ch 27, the defendant learned on Saturday that an injunction was going to be applied for and he then set a large number of men to work, worked all night through and nearly the whole of Sunday, and by Monday evening, at which time he received a notice of interim injunction, he had run up his wall to a height of thirty-nine feet. The Court of appeal approved of the decision of the Court of first instance in ordering that a building which the defendant had erected under such circumstances ought to be at once pulled down, Kay, L. J., observed:
'To vary the order under appeal would hold out an encouragement to other people to hurry on their buildings in the hope that when they were once up the Court might decline to order them to be pulled down. I think that this wall ought to be pulled down now without regard to what the result of the trial may be.'
28. In Von Joel v. Hornsey, (1895) 2 Ch 774, the defendant had deliberately avoided the service of the writ granting ad interim injunction restraining him to desist from raising a new building. He gave, in the meantime, instructions to his workmen to hurry on the building in defiance of the objections of the plaintiff and of the proceedings before the Court, Following the principle of (1891) 2 Ch 27, the plaintiff was held to be entitled to an interlocutory mandatory injunction ordering the defendant to pull down so much of the building as had been erected by the defendant after the plaintiff had warned him. Lindley L. J., said :
'The Court will not allow itself to be imposed upon by a proceeding of that kind. If builders will take the chance of running up a building in that way they must take the risk of Pulling it down;'
29. In Smith v. Day, (1880) 13 Ch D 651, the Court of appeal said that whatever a defendant erects after the commencement of the action or after notice that an action will be brought, is subject to the control of the Court; and the Court has jurisdiction to order the pulling down of anything subsequently erected.
30. The above view has found acceptance by the Courts in this Country (vide ILR 41 Cal 436 : (AIR 1914 Cal 362)), There it was held that where a substantial portion of the building had been erected after the defendants had become aware of the institution of the suit and of the application for temporary injunction, the Court would, if necessary, proceed not only to grant a temporary injunction restraining the further erection of the building but also to direct that the building already erected be taken down.
31. The facts of the instant case furnish a clear proof of the conduct of the defendants which amounted not only to contemptuous disregard of the protestations of the plaintiff but also to a defiance of the authority of the Court.
32. Under such circumstances, the Courts do not hesitate to order demolition of the structure, as, the defendant by his own contumacious conduct has deprived himself from being treated with leniency.
33. I may now deal in detail with the authorities cited at the Bar having a bearing on the point referred to this Bench.
34. In support of the proposition maintained by the defendant, reference may be made to the undernoted cases.
35. One of the earliest cases where this question came up for decision was Biswambhar Lall v. Raja Ram, (1869) 3 Beng. LR (ApP) 67 : 13 Suth WR 337 (Note). In that Case the question raised was whether the land being joint the defendants erecting a wall of the house over the said joint land was valid, or whether the said wall ought to be demolished. Sir Barnes Peacock, C. J., said:
'It appears to me, that even if the defendant had not a strict legal right to build the wall upon the joint land, that this is not a case in which a Court of Equity ought to give its assistance for the purpose of having the wall pulled down. A man may insist upon his strict rights but a Court of Equity is not bound to give its assistance for the enforcement of such strict right.
It appears to me that this is a case in which apparently no injury to the plaintiff has been caused by the erection of the wall, and that, therefore, the plaintiff ought to be left to such a remedy as he may have without applying to a Court of equity for assistance in having the wall demolished. He may, if he thinks fit, apply for a partition, but I do not think that it would be equitable, after the defendant has gone to the expense of building the wallupon the land of which he was a joint owner, to have that wall demolished at the suit of his joint co-sharer, without showing that it causes any injury to the plaintiff,'
36. In ILR 8 Cal 708, a Bench of Calcutta High Court said that there was a considerable difference between a case in which the other co-sharers acting with diligent watchfulness of their rights, seek by an injunction to prevent the erection of permanent building; and a case in which, after a permanent building has been erected all considerable expense, he seeks to have the building removed. In such a case, the settled principle was that though the Court had a discretion to interfere and direct the removal of the building, the discretion was not to be exercised necessarily in every case and should not be exercised unless the plaintiff was able to show that injury had accrued to him by reason of the erection of the building; and perhaps further, that he took reasonable steps in time to prevent the erection.
37. In ILR 9 All 661, Mahmood J. said that 'the mere circumstance 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 can show that the building has caused such material and substantial injury as a Court of equity could not remedy in a suit fqr partition of the joint land.'
38. In Shamnugger Jute Factory Co. v. Ram Narain Chatterjee, ILR 14 Cal 189, the Bench observed :
'And the principle is well settled that, in granting or withholding an injunction the Courts exercise a judicial discretion and weigh the amount of substantial mischief done or threatened to the plaintiffs and compare it with that which the injunction, after granted, would inflict upon the defendant. ............ But we are not aware of any decisionwhich establishes the broad proposition contended for by the plaintiffs that one co-owner is entitled to an injunction restraining another co-owner from exceeding his rights absolutely, and without reference to the amount of damage to be sustained by the one side or the other from granting or withholding of the injunction.'
39. In 4 Cal LJ 198, Mukerjee J. said at p. 205:
'Now, as was pointed out in Mohesh Narain v. Nawbut Pathak, 1 Cal LJ 437, although in the case of immoveable property, jointly owned, each co-owner is in theory interested in every infinitesimal portion of the subject-matter, and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with the others, yet it does not follow, that one joint-owner is entitled to maintain an action in ejectment against a co-owner, merely on the ground that the latter has taken exclusive possession of a portion of the joint property. Such exclusive occupation may, under certain circumstances, be perfectly legitimate and may not constitute an invasion of the rights of the co-sharer if there is no assertion of a hostile title, no exclusion or ouster, an action in ejectment cannot lie, I am not prepared to hold, that an exclusive appropriation by one co-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 view expressed by Mahmood J. in ILR 9 All 661, was endorsed and it was also observed that this view was not weakened by the decision in the case of ILR 12 All 436.
40. In 5 Ind Cas 17l : 11 Cal LJ 189, a Bench of the High Court of Calcutta observed that the sole occupation of part of the common estate by one co-owner does not inevitably imply an ouster of the odier co-owners and, therefore the erection of a substantial building by one co-owner on the joint property even without the assent of his other co-sharers was not conclusive evidence of the ouster of the latter. The test to be applied in such cases was whether the plaintiff had sustained some substantial injury by reason of the act of which he complained.
41. In AIR 1930 Cal 341 (343), the Bench observed:
'In the matter of injunctions there is a considerable distinction between a case in which the other co-sharers, acting with diligent watchfulness of their rights, seek, by an injunction, to prevent the erection of a permanent building and a case, in which, after permanent building has been erected at a considerable expense, they seek to have it removed; ILR 8 Cal 70S. In view of the proceedings and order relating to the temporary injunction the present case, no doubt, falls within the former category. Even then, 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: 18 Cal WN 328: 21 Ind Cas 621 : (AIR 1914 Cal 283).'
42. In AIR 1925 Nag 145, a tappar had been put by one co-owner on joint land without the consent of the other co-owner. As there was no special damage proved by the plaintiff the demolition was not ordered. Kinkhede A. J. C. said that even the erection of a substantial building by a co-owner upon a portion of joint property without the assent of the other co-owner was not conclusive evidence of ouster.
43. In AIR 1950 Pat 511, the Calcutta view was followed and relief by way of decree for demolition was denied to the plaintiff who had complained of a building having been erected on the joint property by his co-owner as he had failed to establish that he had sustained substantial injury by reason of that act and had not taken reasonable steps in time to prevent the erection.
44. Among the earliest cases of Punjab, 54 Pun Re 1802. is a leading authority. There a proprietor had erected a pucca building on a portion of the abadi despite the prompt objections of one of the 16 plaintiffs. No substantial damage from the building had been proved beyond the fact that the defendant had probably monopolised a larger share of that particular portion of the common land than would fall to him on division. The Bench expressed the view that the lower Court had exercised a wise discretion in refusing to order the demolition of the building. The view taken in 3 Beng LR (App) 67; ILR 8 Cal 708 and ILR 14 Cal 189, was cited with approval.
45. In 2 Lah LJ 635 : AIR 1920 Lah 227, one of the proprietors in a village had built a house on the village common land. It was held that the other proprietors could not maintain a suit for its demolition without proof of special damage to themselves. It was held that want of proof of special damage was sufficient reason for refusing an injunction, so also was a delay on the part of the plaintiff in bringing the suit.
46. Similar view was also expressed in 29 Pun Re 1918 : (AIR 1918 Lah 51), by Broadway J. In a portion of shamlat which had been mortgaged by certain proprietors the mortgagees had erected a walled enclosure. It was held that a suit for mandatory injunction for the removal of the enclosure was not maintainable in the absence of proof that the erection of the walled enclosure had actually caused such material and substantial injury as could not be remedied on a partition of the joint land.
47. A Division Bench of Punjab Chief Court in Lakhu v. Hanwanta, AIR 1918 Lah 130, held that where one of the proprietors sued another proprietor for the removal of buildings erected by the latter on a part of the village shamlat deh whether within abadi or outside, and it was found that the defendant had not taken more than the share which would fall to him on partition and further that no special damage had been caused to the plaintiff, the suit was liable to be dismissed.
48. Another Division Bench of Lahore High Court in 60 Ind Cas 531, refused to order demolition of the building where a joint owner of the land without obtaining permission of his co-owners had built upon such land in the absence of proof of material and substantial injury as could not be remedied by partition of the joint land.
49. Moti Sagar, J., in AIR 1926 Lah 52, expressed the view that the mere circumstance of a building erected on common land without the consent of the co-sharers and despite their protest even is not sufficient in itself to entitle the aggrieved co-sharers to claim the demolition of the building so erected unless it could be shown that the erection of that building had actually caused such material and substantial injury as could not be remedied on a partition of joint land.
50. Johnstone, J., in Natha Singh v. Jawala Singh, (1929) 30 Pun LR 360, refused to order demolition of a building on a small fraction of joint land in the absence of special damage sustained by the plaintiff.
51. A Bench of Lahore High Court in Yara v. Jalal, AIR 1931 Lah 631 (2), expressed the same view.
52. In the rural areas of Punjab where customary law holds the field there are special features governing the right of the proprietors and non-proprietors as to bringing under possession vacant sites in the abadi. A co-sharer may bring into his use and possession vacant site which is not reserved for common use of the villagers. In the absence of special circumstances, such as a co-proprietor being already in possession of more than his share of the village abadi, or the particular site having some special value, or where the unoccupied and vacant site in the abadi has already been reduced to an extent making it undesirable for further appropriation, a co-sharer will not be restrained from bringing into his use and possession a portion of the vacant site.
But in the case of a dwelling house, in the village each proprietor has a right of property and the right entitling him to exclusive possession regardless of the fact whether the area in actual occupation of a proprietor is in excess of what he would he entitled to in the event of partition. The village abadi has special incidents the analogy of which cannot be incorporated into other cases of joint ownership (vide Rattigan's Digest of Customary Law, paras 233, 234 and 235),
53. In abadi deh every proprietor can build a kotha and in fact abadi deh is meant for this purpose and for other common purposes of the village; and a suit for an injunction to remove the kotha, is not maintainable, in the absence of proof of material and substantial injury, and other circumstances mentioned above (vide AIR 1929 Lab 499).
54. In AIR 1930 Lah 862, AIR 1935 Lab 250 and (1949) 51 Pun LR 192, similar opinion was expressed. In the last mentioned case, however, Achhru Ram, J., brought out one distinction. In that case a co-proprietor had built a compound wall about one foot in height with a view to construct a house on it. The plaintiffs had asked for a mandatory injunction for the demolition of the wall and for restoration of the site to its original condition. The learned Single Judge granted the plaintiffs a decree for perpetual injunction as prayed restraining the defendants from constructing a house on the site.
In this case, reliance was placed by the learned Single Judge on paragraph 225 of Rattigan's Digest of Customary Law, where it is stated that, in the absence of custom, none of the proprietors can do anything which alters the condition of the joint property without the consent of all the co-sharers. The learned Judge also referred to paragraph 235 which provides that a proprietor may be restrained by his co-sharers from appropriating a vacant site to his own exclusive use. The learned Single Judge then observed -
'To allow the contesting defendants to build a house on the site will in effect amount to excluding that site from that of which partition can be claimed by any member of the proprietary body by means of appropriate proceedings. So long as the site remains vacant it does not become the absolute property of the proprietor or the proprietors in possession and in any action brought for the partition of the shamlat abadi will be thrown into the hotchpotch. However, as pointed out in Paragraph 223 of Rattigan's Digest of Customary Law, each proprietor has a right of property in his dwelling house in the village and after a house has been allowed to be built on any vacant site, it cannot be thrown in the hotchpotch when an action for partition of the shamlat abadi is brought.'
After referring to Ishwar Singh v. Atma Singh, 117 Pun Re 1894 and Mohammad Khan v. Fazal Dad, 149 Pun Re 1919 : (AIR 1920 Lah 336 (1)), the learned Judge said -
'It is thus obvious that By allowing the contesting defendants to construct a house on the vacantsite in dispute an injury will be done to the other proprietors which cannot be said to be capable of being remedied at partition.'
55. Similar view was taken in Bur Singh v. Sant Singh, AIR 1934 Lah 327, holding that the portions of the abadi occupied by houses of the villagers or used for public purposes were not liable to partition.
56. In Makhan Singh v. Ishar Singh, 136 Pun Re 1906, Reid, C. J., distinguished the case of dwelling houses from the case of village common land on which the co-sharers had been in the habit of tethering cattle, as, that was partible and had not been dedicated to a common purpose in the sense in which land occupied by mosques, tanks and roads had been dedicated.
57. It will thus be seen that in the case of (1949) 51 Pun LR 192, Achhru Ram. J., was stressing the peculiar feature of the customary law of Punjab relating to abadi deh. In the abadi deh, a house of a proprietor is not a subject-matter of the partition of the shamlat abadi, but this is not a feature common to other joint properties. The observations of the learned Judge cited above cannot, therefore, apply to the present case as there is no legal ban on partition of the building if that becomes necessary.
58. On behalf of the appellant reliance has also been placed upon a Full Bench decision in Chhedi Lal v. Chhotey Lal, AIR 1951 All 199, which I will examine after taking note of the earlier Allahabad decisions cited by the learned counsel for the respondent.
59. I have examined so far the decisions of the different High Courts following which, the question under reference should be answered in the negative.
60. I may now refer to the decisions which were cited by the learned counsel for the respondent in order to persuade us to give an affirmative answer to the question.
61. The first decision upon which reliance has been placed is a decision of a Full Bench in ILR 12 All 436. In this case one of the several co-sharers in a mahal had started a kacha building and another co-sharer, a few days later, filed a suit for an injunction to restrain the continuance of the structure on the ground that the defendant was ousting the plaintiff as a co-sharer from a portion of the common land. It was found as a matter of fact that the defendant was building upon land which was greatly in excess of his share which would come to him on partition, and that On partition the plaintiff could not be adequately compensated.
It was further found that injury had been caused to the plaintiff which could not possibly be remedied by partition. A perpetual injunction was granted and the building was ordered to be demolished. Mahmood, J., who was a member of the Full Bench, said that the rule laid down by him in ILR 9 All 661, was in no way affected by the Full Bench decision as, on the facts, the case was distinguishable on the ground that the injury could not be remedied by partition.
62. In ILR 18 All 115, following ILR 12 AW 436 it was held that one of the several joint owners of land was not entitled to erect a building uponthe joint property without the consent of the other joint owners notwithstanding that the erection of such a building may cause no direct loss to the other joint owners. It is a short judgment where the question was not examined in any great detail, and it was merely observed, that the law did not favour one cosharer adversely to the other co-sharers making a Partition in his own favour and selecting the portion of the land he liked by erecting building upon it.
63. The next authority is ILR 18 All 361. This decision is distinguishable on the facts as thedefendant had purchased the building in question from a trespasser which had been erected by encroaching upon property which did not belong to him. Some of the co-sharers had Purchased the building from the trespasser, and it was held, that they stood in the shoes of the trespasser and they were not in possession of the building in their character as joint co-parceners. This authority is of no assistance to the respondent.
64. The next case referred to us is a Full Bench decision in ILR 27 All 688. At the outset, the Bench desired to say that any observations made were directed to the particular circumstances of this case. In this case, the defendants had constructed a wall on a joint property to which the plaintiff had promptly objected. The defendants' plea that no special damage had been proved to have Been caused to the plaintiff did not prevail and the injunction was granted. In this decision conflicting cases were not examined and the necessary incidents of joint property were not discussed and the learned Judges who constituted the Bench were careful enough to say that they were deciding the case on its own facts.
65. The next Allahabad authority referred to us was 32 Ind Cas 600 : (AIR 1918 All 322). Walsh J., held that in a suit for injunction against a co-sharer for wrongful use of a joint land, it was not necessary to prove that the plaintiff was suffering or was likely to suffer substantial injury by such user and a joint owner had no right to deal with the joint property without the consent of the other joint owners. The learned Judge followed the Division Bench decision in ILR 18 All 115, and thought that the decision of Mahmood, J. in ILR 9 All 661, should be taken to have beendefinitely overruled.
66. The next authority on this point is a decision of a Division Bench in Shibba Mal v. Naurang Mal, 39 Ind Cas 739 : (AIR 1917 All 118). where It was held that one joint owner of a private property had no right to do anything which would make the joint property more exclusively his. On this reasoning, the building of a balcony projecting over the joint passage was ordered to be removed. There is no further discussion of the rights and obligations in regard to the joint property.
67. In AIR 1925 All 700, a learned Single Judge doubted the correctness of the view expressed in the decision of Mahmood, J., in ILR 9 All 661 and preferred the view taken in other Allahabad cases which have been mentioned above holding that a co-sharer had no right to build on what Was Joint land without the consent of the others and if he did so, the others could sue for demolition of the building.
68. A Full Bench of Allahabad High Court in AIR 1951 All 199, reviewed the previous decisions of that Court and also of other High Courts. In that case certain constructions had been started by the defendant on the joint land to which the plaintiffs had protested but the protest went unheeded. The plaintiffs then challenged the right of defendant to construct on joint land, and the trial Court decreed the suit for joint possession by demolition of the pucca constructions. The lower appellate Court dismissed the relief for demolition.
On the matter coming up in appeal before the High Court, a learned Single Judge referred the two matters to a larger Bench. The main question was whether, when one of several co-sharers without the consent of the other cosharers raises a construction upon the joint land which till then had been in the cultivation of the tenants or had been lying fallow, any of the other co-sharers could get the building demolished. The Full Bench observed 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 had been invaded by the other co-sharers, either by exclusively appropriating and cultivating land or by raising constructions thereon.
The right of the co-sharer to object to exclusive appropriation by the other to himself to the detriment of the former co-sharer was conceded, but as to the nature of relief, it was said that that depended upon the circumstances of each case. The right to the relief for demolition and injunction would be granted, if the evidence established, that the plaintiff could not be adequately compensated at the time of the partition, and, that greater injury would result to him by the refusal of the relief than by granting it.
On the contrary if material and substantial injury would be caused to the defendant by the granting of the relief, the Court would be exercising proper discretion in withholding such relief. While granting the relief, the Court should be guided by considerations of justice, equity and good conscience. It would thus appear that the strict view which was adopted in the Allahabad cases had been departed from and the view expressed by Mahmood, J., does no longer stand rejected.
69. The learned counsel for respondent then referred to a decision of a Division Bench of the Calcutta High Court in ILR 41 Cal 436 : (AIR 1914 Cal 362). It was held in that case that sole occupation by one co-sharer did not necessarily constitute an ouster of the other co-owners; but a co-owner, in sole occupation of a portion of a joint property even if with the consent of other co-sharers, was not entitled to change the nature of that possession, or to use the property in a mode different from that in which it had been previously used.
70. The learned counsel for the respondent then cited certain decisions of Lahore High Court. In I. L. R. 2 Lah 73 : (AIR 1921 Lah 157), the Letters Patent Bench affirmed the decision of a learned Single Judge reported in I. L. R. 1 Lah 249: (AIR 1920 Lah 34). In that case, a plot of abadi land was taken possession of by the defendants,two of whom asserted their exclusive title and denied that of the other proprietors. It was held that joint possession by other proprietors was competent.
Sir Shadi Lal C. J., who wrote the judgment in the Letters Patent appeal, thought that it was a matter for serious consideration whether the doctrine that a co-sharer occupying a portion of the joint land who has not denied the joint character of the property, should be allowed to retain it until partition, is applicable to the peculiar circumstances of the abadi land, more especially, when the vacant land had already been reduced to a small area barely sufficient for common purposes of the village.
No final opinion, however, was expressed, as, in that case, the defendants had undoubtedly denied the title of the other CO-sharers. Moreover, in that case, the decree passed in favour of the plaintiffs was not for ejectment but only for joint possession. This decision can hardly be invoked by the respondent in order to persuade us to answer the question under reference in the affirmative.
71. In AIR 1923 Lah 205, Martineau J., held that where no partition had taken place between several co-sharers, one co-sharer could maintain a suit for injunction not to build and to demolish buildings already built on the joint land, on the ground that the plaintiff as a co-sharer had a right in every portion of the land and the defendants were not entitled to build without the co-sharers' consent.
72. In Yusaf Alim Hakimji v. Muhammad Din and Sons, AIR 1927 Lah 718, there was a road left for the common use of the owners and on a portion a platform and a staircase had been erected more than two years prior to the institution of the suit. It was held that a further structure could not be raised on the platform and the staircase could not be ordered to be dismantled. This decision does not decide any question which could be availed of by the respondent. It was, however, observed that if the property is not partible there is no occasion for the plaintiff to show any special damages and all that he need show was that he had been deprived of the user of the property as it stood originally.
73. In AIR 1927 Lah 416, there was an encroachment by a proprietor upon a part of the gora deh. As gora deh is reserved for common purpose of the proprietors, the Court declined to uphold the wrongful act of the defendants on the plea that no special damage had been caused to the other proprietors by the wrongful act.
74. In AIR 1932 Lah 89, an injunction was issued restraining a defendant from erecting a chabutra in a lane which was the joint property ot the parties. In that case, an injunction was held called for, especially, in view of the denial of the title of the plaintiffs by the defendants. The construction complained of had not commenced but was only threatened.
75. In (1936) 38 Pun LR 679, a chabutra had been built in a kucha khas Or lane jointly Owned by the parties which was seven feet in width. Bhide J. Ordered the defendant to reduce the height of the chabutra and bring it to the level of the adjoining portion of the lane. The chabutra as constructed had excluded the plaintiff from theuse of the joint property. This decision is of no help in determining the question as to the demolition of the building on a joint site.
76. In AIR 1939 Lah 514, on a shamlat deh in possession of all proprietors the defendants built a Gurdwara. The other proprietors were held to be entitled to sue for demolition of the building, as, in that case, the shamlat of the village had already been partitioned and only special areas, such as the one in suit, were left out of the partition, being impartible and reserved for common purposes. In that case, the wrong suffered by the plaintiffs could not be remedied by the partition,
77. From the consideration of the decisions of different High Courts on the subject, it is evident that apart from some cases which are distinguishable as having been decided on their own peculiar facts, there is an obvious conflict! which cannot be reconciled.
78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions -
(1) A co-Owner has an interest in the whole property and also in every parcel of it.
(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.
(8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition Or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.
(9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.
79. This is a case which attracts the application of proposition No. 4. From what has beenstated above, the question referred by the learned Single Judge will be answered as follows:
'If, in spite of protests by one co-owner, another co-owner raises a building on a portion of joint land, not exceeding his own share therein, the aggrieved co-owner cannot obtain a decree for demolition of that building without proving special damage or substantial injury to him unless the other co-owner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other co-owners.'
80. As the entire case is before this Bench for decision, I am of the view that, as the defendants had openly denied co-ownership and had asserted their exclusive title on the false plea of previous partition and had continued to raise the structure despite the protestations of the plaintiff, and in disregard of the temporary injunction issued, the decree passed by the trial Court for demolition of the structure and restraining the defendants from making any structure thereon in future, is manifestly just.
81. In the result, the decree passed by the trial Court is affirmed and this appeal is dismissed. In the circumstances of the case, the parties are left to bear their own costs.
K.L. Gosain, J.
82. I agree.