D.S. Dave, J.
1. Both the cross-appeals arise out of the same suit and therefore they are disposed of together. They are directed against the judgment and decree of the learned Civil Judge, Tonk, dated the 27th February, 1953, modifying the decree of Munsif Tonk dated 31-10-52 in a suit for mandatory and perpetual injunction.
2. The dispute between the parties relates to a house which is situated in the town of Niwai in a locality which is known a Khari Kui Ka Bas. It is common ground between the parties that different portions of the said house are occupied by the parties to the suit. There are two chowks in this house. The property which is in possession of the plaintiffs is situated in the inner chowk. There was an open passage leading from the first chowk, to the second chowk.
3. It was averred by the plaintiffs that the said passage between the two chowks was joint property of the parties, that defendant No. 1 Chhaganlal in collusion with defendant No. 2 Ratanlal started constructions on the said joint lane on 12-12-50 and after erecting pillars on both sides of the lane he covered it with stone slabs.
Thus, according to the plaintiffs, defendant No. 1 had encroached upon the joint property, that the said construction had not only deprived the plaintiffs from their right over the property but it had further caused material damage to the property which was in their sole possession inasmuch as the new construction had obstructed light and air reaching that part of the building. It was prayed that defendant No. 1 should be directed by mandatory injunction to demolish the construction which he had made over the joint property and that be should be restrained by a perpetual injunction from making any construction thereon thereafter.
4. Defendant No. 2 Ratanlal supported the plaintiffs' case and urged that he was not in collusion with defendant No. 1 and that he was unnecessarily impleaded as a defendant.
(4a) Defendant No. 1 contested the suit saying that he had not infringed upon any right of the plaintiffs and that the suit was therefore fit to be dismissed. From the pleadings of the parties the trial Court framed 5 issues and after recording evidence of both the parties and inspecting the site, it came to the conclusion that the disputed passage was originally 5' 3 1/2' in width, that defendant No. 1 had raised pillars on one side and narrowed it by 10,' that on the other side also, he bad raised pillars and the passage had been narrowed down by 8 1/2', that in this manner the total width had been narrowed down by 1' 6 1/2' leaving a space of 3' 9' in width.
It also came to the conclusion that this passage was joint property of the parties and that defendant No. 1 had no right to make any constructions thereon. It therefore allowed the plaintiffs' suit and ordered the new construction to be demolished. Defendant No. 1 was further directed not to make any construction on the disputed passage ever in future. Aggrieved by this decree dated 31-10-52 defendant No. 1 filed an appeal which was heard by learnedCivil Judge Tonk. The learned Civil Judge alsoconcurred with the findings of fact arrived at bythe trial Court, but at the same time it was observed by him that the plaintiffs were not able to proveany substantial damage and therefore he thoughtthat the order about demolition of the constructionwas not proper.
In the opinion of the first appellate court the plaintiffs could be compensated by damages and therefore it modified the decree of the trial court by ordering the defendant to pay Rs. 150/- for compensation to the plaintiffs. The defendant was also directed not to make any construction on the first floor. Both the parties are dis-satisfied with this decree dated 27-2-53 and therefore both of them I have filed separate appeals.
5. Learned counsel for defendant-appellant Chhaganlal has urged that when the first appellate court had allowed Rs. 150/- for compensation to the plaintiffs, it should not have restrained his client from making any construction on the first floor. It has been prayed that the decree of the first appellate court should be set aside so far as it directs the defendant not to make any construction on the first floor.
6. Learned counsel for the plaintiffs Kesarlal and Lalchand has urged on the other hand that the passage was narrowed down to 3' 9' in width, that the trial court had itself remarked that it did not leave any room, even for large sacks of cotton or bier to be carried through it in case of death of someone amongst the occupants of the house, that under these circumstances the first appellate court ought not to have set aside the trial court's order regarding the demolition of the new construction.
It has been urged that the plaintiffs are not prepared to accept Rs. 150/- that the injury is not capable of compensation and that the decree of the first appellate court should therefore be set aside and that of the trial court should be restored. In reply to this argument learned counsel for defendant-appellant Chhaganlal has urged that his client has not raised a wall over the entire length, but he has only raised 2 pillars on one end, that similar pillars were already existing on the other end and his client has only covered the passage.
It is contended that under these circumstances the trial court's order for demolition of the new construction was not proper. In support of his argument learned counsel has referred to Paras Ram v. Sherjit, ILR 9 All 661. In that case it was held 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, in itself, 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 for partition of the joint land'.
It would suffice to say that the observations made above by the learned Single Judge are not helpful to the defendant, because the passage in dispute is so narrowed that it is not capable of being partitioned between the parties and therefore, it is clear that the injury sustained by the plaintiffs is substantial and material and a court of equity cannot remedy the same even if a suit for partition of that property is ever brought. Learned counsel bas next referred to Gopal Ram v. Ram Prasad AIR 1952 Pat 351. In that case also the learned Judges had laid down two principles as follows :
'In the first place, if one of the cosharers intends to appropriate to his own use a portion of the joint land and takes up a portion of such land and builds a pucca house thereon he ought not to be treated as a trespasser. Secondly, if a co-sharer seeing one of his co-sharers erect a house on a piece of joint land stands by and makes no objection, a Court of Equity will presume his acquiescence to the erection of the building and will not order demolition of the pucca building on the joint land unless it is shown that injury would accrue to the co-sharer plaintiff and also before the building was started objection was taken to its erection.' The learned Judges in the above case followed the view taken in Paras Ram's case, ILR 9 All, 661 but it has already been pointed out above that the principle which was laid down by Mahmood J. in Paras Ram's case, ILR 9 All 661 is of little help to the defendant-appellant in the facts and circumstances of the present case and therefore the view ex-pressed in the Patna case, AIR 1952 Pat 351 does not carry the defendant's case any further. Learned counsel has then referred to Joy Chunder Rukhit v. Bipro Churn Rukhit, ILR 14 Cal 236.
This case was referred in Paras Rani's case, ILR 9 All. 661 and it is therefore distinguishable for the same reason. Learned counsel has also referred to Baru Mal v. Rala Ram, AIR 1938 Lah 779. In that case a lane which led to the property of the plaintiff was covered by the defendants partly, that is, the part of the lane adjoining their own property was roofed over by them. The plaintiff sued for an injunction to compel the removal of the structure. It was observed by the learned Judge as follows:
'In the ordinary way, I do not see why one of the owners should not sue for injunction for the removal of a structure of this kind, even though the damage only be very slight or hypothetical, and on this point I do not think that the view taken by the lower courts was correct. There is however an entirely different reason for refusing to grant an injunction in this case. The plaintiff has made an exactly similar use of the lane opposite his own property, and in these circumstances I do not think that he can ask the defendants to remove their structure, so long as his own structure remains, even though their own encroachment may be greater than his.'
It is absolutely clear from the above observation that it is of no help to the defendant-appellant. On the other hand, it shows that according to the learned Judge also the ordinary remedy which should have been given to the plaintiff was the removal of the structure from the joint property even though the damage was slight or hypothetical. It further appears that the learned Judge would not have hesitated to give that remedy to the plaintiff, but it was refused for another reason.
That reason was that the plaintiff himself had covered a part of the lane and this is why the learned Judge did not think it proper to order the demolition of the construction made by the defendants, since he thought that the defendants were also in equity entitled to make a construction similar to the one which was made by the plaintiff.
On the other hand, it may be pointed out that in Subbayya v. Somalingam AIR 1920 Mad 223 the plaintiffs and the defendants were joint owners of a lane which was 10 in width. The defendants had encroached upon the lane to the extent of 1' in breadth. The plaintiffs brought the suit for mandatory injunction for the removal of the obstruction. It was observed in that case as follows :
'The principle, so far as we are able to see, is that, if it is common property and if there are other remedies open to the party who has been affected by the wrongful act of the co-owner, then the Courts should not ordinarily grant a mandatory injunction.
But in this case no other remedy is possible. Therefore the property should be left in its original condition if there is to be convenient enjoyment, as the lane cannot be partitioned. Under these circumstances, when one of the joint owners puts an obstruction on the lane which has the effect of making it less convenient for the other co-owner, the only remedy open to him is to sue for a mandatory injunction'.
With these observations, which very fittingly apply to the present case also, the order of the Subordinate Judge demolishing the steps and pials was maintained. Similarly, in Yusuf Alim Hakimji v. Muhammad Din and Sons, AIR 1927 Lah 718, it was held that -
'In a suit for injunction against a co-owner relating to the erection of structure on the joint property, if the property is not particle, there is no occasion for the plaintiff to show any special damage. It is sufficient for him to show that he has been deprived of the user of the property as it stood originally'.
In Nathulal v. Roshanlal 1953 Raj L. W. 60 the defendant had put in brackets and constructed a Ros and thereby made an encroachment on the chowk which jointly belonged to the parties. It was held that -
'The land on which the construction is made is not agricultural land and is not such which can be partitioned. The situation of the joint chowk in this case is in the crowded town of Udaipur where open spaces are necessary, not only for rights of way and use on ceremonial occasions but also in order to supply fresh air to the occupiers of the neighbouring houses.'
The order of the learned District Judge issuing a mandatory injunction for the demolition of the construction, i.e. the brackets and Ros was maintained. It is clear from the observations made above that the correct principle of law is that if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given is the mandatory injunction for restoration of the joint property to its original condition by the demolition of the new construction.
In the present case it has already been pointed out above that the passage which was joint property of the parties was only 5' 3 1/2' in width that it has been narrowed down to a considerable extent i.e. to 3' 9' and it has been further covered by the defendant. This is a clear infringement of the right of the other co-owner, namely, the plaintiffs. The passage is certainly incapable of partition between the parties and under the circumstances the only remedy which could be given to the plaintiffs was a mandatory injunction to the defendant for demolition of the new construction. The decree given by the trial court was thus correct. The first appellate court was not justified in modifying it in the manner in which it has been done.
7. The plaintiffs' appeal (No. 145/B) is there-fore allowed with costs. The decree of the first appellate court is set aside and that of the trial court is restored. The defendant's appeal (No. 108/B) is dismissed. The plaintiffs have already been allowed costs in one appeal and therefore the parties are left to bear their own costs in this appeal.