1. This rule is directed against an order granting a temporary injunction against the petitioner passed by the Subordinate Judge of Hooghly. The plaintiffs brought a suit for recovery of a share of the properties in suit. Defendant 2 is the petitioner before us and is a trading company in Calcutta who are building a mill on the land in suit and the injunction asked for by the plaintiffs and which has been granted by the Court is to the effect that the petitioners should be restrained from continuing to build on the land. The injunction was prayed for presumably under Order 39, Rule (1), Clause (a), which provides that the Court may by order grant a temporary injunction if the property in dispute in a suit is in danger of being wasted or damaged or alienated by any party to the suit. It is, therefore, necessary to see whether the present case is really a case in which any property is being wasted or damaged. We have been relieved of the necessity of dealing with this matter with regard to the merits by the admission made by the opposite party through their learned advocate that the defendants are not in possession of the land in suit or at any rate of the land on which they are attempting to erect this building. If that is so, this injunction is infructuous, for it is impossible for anyone to raise structures upon land in possession of another. But the learned advocate for the opposite party contends that the defendant company may forcibly dispossess the plaintiffs, and continue their building operations on the land in suit. If that contingency arises the plaintiffs have a remedy in the criminal Court. We, therefore, need not consider this case on the footing of there being a possibility of the petitioners building upon the land in suit. The learned Subordinate Judge has only considered the question whether there is a bona fide dispute or not and having come to the conclusion that there is a bona fide dispute he has without further considering the matter granted the injunction; prayed for : and in support of his order he has observed that great complications will arise if defendant 2 be allowed to build structures on the disputed property and if the suit be eventually decreed. We have heard the learned advocate for the opposite party at great length, but we are not convinced that really great complications will arise even if the plaintiffs succeed in their suit. The learned advocate for the petitioners has frankly admitted that his clients are prepared to take the risk of building upon the land in suit and to abide by the result of the suit, if it is decreed against them; and his clients will not raise any objection on the ground that they have raised buildings upon the land. In the present case we are not satisfied that the structures if raised by the petitioners upon the land in suit will cause any damage or waste to the opposite party as they are not using the land for any other purpose.
2. The question becomes very different when we take into consideration the fact that the present suit is one for partition and that defendant 2 admittedly is a sharer in the land in suit. The law with regards to granting of injunction which obtains in a case brought against a trespasser is not the same as that in a case where one of the cosharers sues another in partition. Every owner of the land, whatever the extent of his share, has the right to use the land in any way which he thinks proper and this has been laid down by their Lordships of the Judicial Committee. If that be not so, it will not be possible for any cosharer to use any part of the land in coparcenary for any profitable purpose and, therefore, an order passed against a cosharer restraining him from building upon a portion of the joint property must be passed with great caution. There may be circumstances under which a cosharer may be restrained from doing any such act : for instance where the object of the cosharer building upon a portion of the land is to induce the Court, when time for partition of the joint property comes, to let him have this land in preference to any other portion of it. We do not see how in this case the property in trait is liable to be damaged or wasted by defendant 2 erecting some structures upon it.
3. The next point which has been urged by the opposite party is that we should look into the balance of convenience. It is no doubt a safe guide and looking at it from this point of view we are of opinion that by this order of injunction greater inconvenience will be caused to the petitioner than to the opposite party. The petitioner intends to start a Mill on the adjacent land and this land is required for necessary structures; and it is possible that if he is not allowed to build on this land his loss cannot be compensated by the opposite party.
4. The Rule is made absolute, and the order of the Court below granting injunction is set aside. The petitioners are entitled to their costs of this hearing. We assess the hearing fee at three gold mohurs.
5. Let the record be sent down as soon as possible.
6. I agree.