Chatterjee and Newbould, JJ.
1. This is an appeal against an order granting a temporary injunction restraining the defendants appellants from further building on, or changing the character of the land of which the plaintiff is seeking to recover possession from them. The land in dispute consists of two plots, the first plot being about a bigha in area according to the plaintiff, and about 16 cottas according to the defendants. The second plot is about a bigha in area and there is a tank on a portion of it.
2. The plaintiff alleges that these two plots of lands are included within the estate No. 2402 of, the 24-Par-ganahs Collectorate which was purchased by him at a sale for arrears of revenue on the 8th January 1915. In August 1915 the plaintiff issued a general notice on the. property to the effect that the interests of tenants under leases (except those protected) were thereby annulled.
3. It appears that on the 8th and 9th August 1911, the two plots of land in dispute, which belonged to a family known as the Haldars, were purchased at sales held for arrears of rent by one Katyayani Debi. On the 19th November 1915, Maharaja Sir Pradyot Kumar Tagore purchased 9 cottas said to form part of the land mentioned in the first plot, from one Gadadhar Ghose and another who, it is alleged by the defendants, were sub-tenants under the Haiders in respect of the 9 cottas. The purchase admittedly was made on behalf of the defendants, Messrs. Begg, Dunlop & Co. It is also alleged that the Maharaja arranged for purchasing the two plots from Katyayani Debi and took possession thereof pending execution of a formal conveyance.
4. It appears that a large quantity of land about 140 bighas was acquired by Messrs. Begg, Dunlop & Co., through the Maharaja in the locality for a jute mill. In February 1916, the Maharaja made over possession of all the lands which he had acquired on behalf of the defendants including the lands in suit, to Messrs. Begg, Dnnlop & Co. It is alleged on behalf of the defendants that there was some building on plot No. 1, which was pulled down in March 1916, and in April 1916 the whole of the 140 bighas were surveyed and plans were prepared by the builders, Mackintosh Burn & Co. In July 1916, the builders took possession of the lands for the purpose of erecting the necessary buildings and the main buildings were commenced in November 1916. On the 26th January 1917, the plaintiff's solicitors wrote to the defendants that the plaintiff had annulled all incumbrances and that if the defendants built or proceeded to build any erection on the land in question they would do so at their own risk. On the 29th June 1917, a formal conveyance was executed by Katyayani Debi in respect of the disputed lands of which possession had been taken before. On the 3rd July 1917, the building of the staff quarters on the plot No. 1 and the adjoining lands was commenced. It appears from a letter of the plaintiff's pleader, Kishori Mohan Sen, dated the 28th August 1917, that he had an interview with Mr. Tosh of Messrs. Begg, Dunlop & Co. A list of the tenants of the v estate (including the name of Katyayani Debi) whose lands had been taken possession of by the defendants was annexed to the letter, and it was stated in the letter that the plaintiff was surprised to learn that the defendants had already commenced to build upon the land without any right thereto. The defendants were reminded of the printed general notice prohibiting the general public from acquiring the tenants' interest, as also the special notice given by Messrs. Morgan & Co. on behalf of the plaintiff and it was further stated that if the defendants proceeded with the construction works on the plaintiff's land in spite of repeated protests they would do so at their own risk.
5. A reminder appears to have been sent by the plaintiff's pleader to the defendants on the 21st September and the defendants wrote in reply on the 3rd October 1917 that the disputed lands did not appertain to tauzi No. 2402.
6. Three days afterwards, i.e., on the 6th October 1917, the present suit was instituted by the plaintiff.
7. On the 8th. October 1917, they applied for a temporary injunction on the ground that the defendants had purchased the disputed lands comprising the 'non-transferable ticca temporary tenancy-at-will of a certain tenant named Katyayani Debi' which had been annulled, that in spite of prohibition by the plaintiff the defendants had continued building operations on the land and were attempting to finish the same in a hurry, and' at the present; moment have raised the building up to the arch-level of the first story, and are making excavations on the land and are obliterating the boundary marks.' The plaintiff prayed that a temporary injunction might be issued restraining the defendants from 'altering the form of the land and from continuing building operations any further.' The application was supported by the affidavit of one Nalinakshya Mukherjee, and on the 9th October a Rule was served upon the defendants with a copy of the said affidavit. The Courts were closed from the 13th October to the 18th November 1917 for the Puja vacation. On the 3rd December 1917, the defendants showed cause and the affidavits of Mr. Tosh, the senior partner of the defendants' firm, Mr. Lang, a photographer, and Sarat Chandra Gossain. (in whose name some of the assignments in favour of the defendants had been taken), were filed. The defendants in showing cause asserted that the tenancies comprising the disputed lands were in existence from before the Permanent Settlement of the estate; that they were permanent and transferable; that there were buildings on a portion of plot No. 1 and a garden on the rest of it, and there was a tank and garden on plot No. 2; that assuming, but not admitting, that the lands formed part of tauzi No. 2402 as alleged by the plaintiff, they were protected interests under Act XI of 1859; that 'the building for their staff quarters extends over plot No. 1 of the schedule to the plaint as also over the lands lying to the east and west thereof, and covers only those holdings over which either pucca buildings, and structures had been standing,' that the staff quarters with the lands in suit are integral parts of the mill and were absolutely required for its working, and the starting and working of the mill will be considerably delayed, and that the defendants' firm would be put to irreparable loss in consequence if the injunction prayed for be granted. The defendants denied that they had been 'only lately defacing the boundary-marks and otherwise changing the character of the lands in suit' and stated that 'the contractors took possession of 140 bighas of land including the lands in suit towards the middle of 1916 when the entire area was levelled and otherwise made fit for building purposes, and the public road on the south of the lands in suit are still existing and are sufficient to identify the situation thereof.'
8. The Court below by its judgment, dated the 5th February 1918, ordered that 'the building already raised upon the lands in suit do remain in tact, but that the defendants are enjoined not to further build upon the lands, that they are directed not to efface or do away with the existing land-marks on the boundaries of the disputed lands so as to prevent the identification of the land at a later stage of the suit.'
9. This appeal was preferred on the 9th February, 1918, and the hearing of the appeal commenced on the 22nd January 1919, and was finished on the 30th January.
10. The main contentions raised on behalf of the appellants are, first, that no prima facie title has been made out by the plaintiff; secondly, that there was delay in making the application for injunction; and, thirdly, assuming that the plaintiff has shown a prima facie title, the plaintiff being out of possession cannot obtain temporary injunction unless irreparable injury is shown, and that in this case no irreparable injury has been shown.
11. As regards the first contention, it appears that although the defendants in their letter, dated the 3rd October 1917, denied that the land in dispute appertained to tauzi No. 2402, it was admitted that Katyayani Debi purchased the lands in dispute at sales for arrears of rent under the sale certificates annexed to the affidavit of Sarat Chandra Gossain. These sales took place on the 8th and 9th August 1911, in rent-suits Nos. 349 and 351 of 1908 brought by the heirs and successors of Raja Barada Kanta Ray the former proprietors of the estate, and the lands are expressly stated in the plaints in the said suits to be included within the estate No. 2402 (purchased by the plaintiff). The land of plot No. 1 was described in the plaint as ticca gar kaimi (non-permanent) and plot No. 2 as a sara-sari jama (tenancy-at-will). The rent of plot No. 2 (the tank) is stated in the plaint as being Rs. 2 and the rent of plot No. 1 as Rs. 4-4-9. Katyayani Debi sold the lands to the defendants by a conveyance, dated the 29th June 1917, in benami of Sarat Chandra Gossain and in the conveyance also the lands are described as being held under the zemindars, the heirs and successors of Raja Barada Kant Ray at a rent of Rs. 6-4-9. The plaintiff, as already stated, purchased the estate No. 2402 at a sale for arrears of revenue on the 8th January 1915, and obtained possession thereof through the Collector. The former proprietors appealed to the Commissioner for setting aside the sales, but the appeal was dismissed and the sale was confirmed. They then brought a suit on the 26th August 1915 for setting aside the sale, but the suit was dismissed on the 7th April 1917, and an appeal has been preferred to the High Court against the decree of dismissal, and that appeal is still pending.
12. The prima facie title of the plaintiff to the estate No. 2402 is therefore established, and also that the lands in dispute are included within that estate. The plaintiff gave notice of annulment of encumbrances except those which are protected under Section 37 of Act XI of 1859.
13. Both the plots of Land in dispute were held by the Haldars under the proprietors of the estate, and the interest of the Haldars, passed to Katyayani Debi at the sales held in execution of rent-decrees obtained by the proprietors, and were eventually purchased by the defendants. The defendants' case is that about 32 years ago the Haldars sub-let the eastern portion of plot No. 1 measuring 9 cottas to one Bhutnath Rajak at a rent of Rs. 2-4. The latter built a pucca dwelling-house on it, and on his death his widow sold the land to one Nafar Chandra Ghose and Hari Dasi. Their heirs, Gadadhar Ghose and Dwijendra Ghose, sold the eastern portion (9 cottas) to Maharaja Pradyot Kumar on the 15th November, the Maharaja acquiring it on behalf of the defendants. It is alleged that the western portion (7 cottas) was in the khas possession of the Haldars who laid out a garden on it, and that on the second plot the Haldars excavated a tank (about 7 or 8 cottas) and a garden was made on the remaining portion of the plot.
14. The Court below, however, has held that the 9 cottas of land held by Gadadhar Ghose under the Haldars was not a part of the plot No. 1 and that the sub-tenancy of Gadadhar was under some other jama under the Haldars.
15. In the kobala, dated the 19th November 1915, executed by Gadadhar Ghose and Dwijendra Nath Ghose in favour of Maharaj-Bahadur Sir Pradyot Kumar Tagore, it is stated that the 9 cottas of land was held at a rental of Rs. 2-4-0 under the Haldars by the late Nafar Chandra Ghose and 'he died in possession and enjoyment thereof by raising pucca masonry building and the like thereon, by residing thereon, etc., etc...' In the deed of sale, dated the 29th June 1917, executed by Katyayani in respect of the 2 bighas in favour of Sarat Chandra Gossain, however, the land is described as 'basat homestead land' 'with tanks, trees and like fixtures.' There is no mention of any pucca building on any portion of the land although the kobala was executed within a year and eight months of the kobala executed by Gadadhar Ghose and Dwijendra Ghose referred to above. The vendor is described as being in possession of land and the vendee was at liberty to take the property in his 'khas' possession.' There is no reference to any sub-tenancy of the Glioses or of any other person in any portion of the lands sold by Katyayani. Then again in the kobala by the Ghoses the 9 cottas is described as being held under the Haldars, although the interest of the Haldars had been purchased by Katyayani in 1911, i.e., four years before. On these grounds, the learned Subordinate Judge held that the 9 cottas sold by the Ghoses was not a part of the disputed plot No. 1 and had nothing to do with it. It is contended before us (as it was contended before the Courts below) that the boundaries of 9 cottas conveyed by the Ghoses tally with those contained in Katyayani's kobala. The learned Subordinate Judge held that they did not tally on all the four sides. It is pointed out on behalf of the appellants that only the western boundary does not agree, but that is because only the eastern portion of the plot (No. 1) was purchased and not the entire plot. That is a possible explanation: at the same time there is some force in the observations made by the Court below, viz., that the land in the Ghose's conveyance is described as being held under the Haldars and as containing pucca masonry structures, whereas in the conveyance by Katyayani the land is described as being 'basat' 'with tank, trees and like fixtures' there being no mention of any pucca structures, or of any sub-tenancy in any portion of the land. The defendants produced a photograph taken by Mr. Long (a photographer) to show that there were pucca structures on a portion of plot No. 1. But the question need not be further discussed as it is not of any importance so far as the present appeal is concerned. The nine cottas of land appears to have been covered by the staff-quarters (building) already erected by the defendants, and that building has been allowed by the Court, below to 'remain in tact until the final disposal of the suit' and there is no cross-appeal by the plaintiff on the point. So far as the western portion of plot No. 1 (7 cottas) is concerned, there was admittedly no structure on the land.
16. It appears that the estate No. 2402 was permanently settled in the year 1842, and it is contended that the tenures of the Haldars were in existence from before the time of the Permanent Settlement, at any, rate, from before the year 1842 when the particular estate was permanently settled, and that therefore the defendants were not liable to be ejected even if their interests were not protected under the 4th proviso to Section 37. The only evidence with regard to the existence of the tenures from before 1842 is the statement made by Mr. Tosh in the 11th paragraph of his affidavit based upon information given by Sarat Chandra Gossain. Sarat Chandra Gossain in his affidavit states that he confirms and relies upon the statements and submissions made in paragraphs 10 to 25 of the affidavit of Mr. Tosh, and that his knowledge of the facts stated in the said paragraphs is 'based upon inspection of zemindari papers and other documents.' On the other hand, Haripada Haldar (aged about 49 or 50 years), the son of Dwarka Nath Haldar, and one of the defendants in the rent-suits which resulted in the sales at which Katyayani purchased, in his affidavit states that he and his co-sharers were in possession and enjoyment of the lands and tank in dispute up to about 5 or 7 years before the suit as tenants; that his father had obtained a settlement, of the tank while it was a tank from the zemindars, and that about 25 or 30 years ago they obtained a settlement of the land of the first plot from the zemindars; that the land, of the first plot, so long as it was in their possession and all along afterwards, was vacant land, there was no building nor any garden or the like thereon; that it remained vacant land fenced all round by bamboo saplings; that in some years according to the requirements of the family it was used by causing the vegetables to be grown thereon by ticca tenants, but then mostly it used to remain in a patit condition. The affidavit of Haripada Haldar, however, was objected to on behalf of the defendants in the Court below, as a copy of it had been served upon them only the day previous to the day on which the hearing of the rule commenced. The order-sheet stated that proper orders would be passed in the judgment. Though no separate order was passed with respect to it the learned Subordinate Judge evidently admitted it as he relies upon it in his judgment. It does not appear that the defendants wanted any opportunity of filing further affidavits to meet the statements made in Haripada's affidavit.
17. Neither party produced any papers in support of the above statements respectively made in the affidavits. The Court below has accepted the statements of Haripada Haldar and upon the materials at present on the record and in the absence of any documentary evidence, we do not see sufficient reasons for differing from the view taken by the learned Subordinate Judge, viz., that there is no reliable evidence to show that the tenancy of the Haldars has been existing since before 1842.
18. The learned Subordinate Judge observes:--'So it comes to this, that the Haldar tenants did not raise any buildings upon the first plot, nor did they dig any tank in the second plot. The defendant who purchased the lands from the auction-purchaser, Katyayani Debi, cannot under the circumstances claim any protection under clauses 1 to 4 of Section 37 of Act XI of 1859.' For the purposes of the present appeal, it is unnecessary to consider the finding of the Court below on the question whether there were buildings on the eastern portion of plot No. 1, as the building erected by the defendants on that portion has been allowed to stand. As already stated, there were admittedly no structures on the western portion, and the evidence on the record is not sufficient to show that there was garden on it, so as to bring it under the 4th clause of Section 37.
19. In granting a temporary injunction, all that is necessary to see is whether the plaintiff has shown a prima facie case in support of the title asserted by him. We do not see sufficient reasons for differing from the view taken by the Court below, viz., that the plaintiff has made out a prima facie title.
20. The second question for consideration is whether there was unreasonable delay in making the application for injunction.
21. As stated above, the plaintiff purchased the estate No. 2402 at a sale for arrears of revenue on the 8th January 1915. The former proprietors appealed to the Commissioner, but the sale was confirmed by the latter on the 1st June 1915. Possession was delivered to the plaintiff by the Collector on the 30th July 1915. In August 1915, a general notice was issued on the property by the plaintiff to the effect that any one dealing with the property or with the interest of the tenants thereof except those which are protected under the provisions of Section 87 of Act XI of 1859, will do so at his own risk, and all tenants of the estate were informed that leases except those which were protected under the provisions of Section 37 of Act XI of 1859 were annulled. A notice was also served on Mr. Tosh, senior partner of the defendants' firm, in August 1915.
22. The defendants commenced some buildings on other parts of the 140 bighas in November 1916. On the 26th January 1917, the plaintiff wrote to the defendants through his solicitors, Messrs. Morgan & Co., as follows:-- 'Our client understands that recently you have acquired an interest in several plots of lands in Mauza Autpur within touzi No. 2402 for the purpose of erecting a mill, our client contends that he is entitled under Section 37 of Act XI of 1859 to annul the tenure-holder's interest acquired by you, and to eject you from the lands, and he will take proceedings for that purpose immediately after the disposal of the suit instituted by Rai Satish Kant Ray Bahadur. Please note that if you build or proceed to build any erection on the land in question, you will do so at your risk.' Mr. Tosh admits receipifc of the letter.
23. Maharaja-Bahadur Sir Pradyot Kumar purchased the 9 cottas on behalf of the defendants on the 9th November 1915, but that was after the notice given to Mr. Tosh. The suits brought by the former proprietors for setting aside the sale were dismissed on the 2nd April 1917. The defendants purchased the two plots of land in dispute from Katyayani Debi on the 29th June 1917. The defendants commenced building on a portion of plot No. 1 in July 1917, and the affidavit of Nalinakshya Mookerjee states 'that plaintiff coming to know of the same on the 27th August 1917,' caused a letter to be written by his pleader, Babu Kissori Mohan Sen, on the 28th August 1917 forbidding them to raise the buildings. No-reply was given to the said letter by the defendants and a reminder appears to have been sent to them by the plaintiff's pleader Kissori Babu, on the 21st September, and it was not till the 3rd October 1917 that the defendants gave a reply in which they regretted the delay in reply occasioned by the necessity to thoroughly investigate the matter put forward, and stated that they were advised that the plot on which they were building did not appertain to touzi No. 2402 and, further, that as regards the said plot they were assured that it was a protected one although under the circumstances of it being outside the plaintiff's touzi, the matter was of no importance. Three days afterwards, i.e., on the 6th October 1917, the suit was instituted. It appears, therefore, that the plaintiff after the purchase of the estate gave general notice and then a special notice to Mr. Tosh, in August 1915, not to deal with the interests of the tenants. There was an interview between the plaintiff's pleader and Mr. Tosh in August 1917 when the building on the disputed land was commenced, then a letter protesting against the erection of the building on the 28th August 1917, followed by the reminder on the 21st September 1917, to which a reply was given on the 3rd October 1917, and in which the defendants denied that the disputed lands appertained to the estate No. 2402 purchased by the plaintiff. The suit was instituted on the 6th October, i.e., only three days afterwards and the application for temporary injunction was made on the 8th October. So far as the rest of the plot No. 1 and the plot No. 2 are concerned, and they are the portions in respect of which the injunction has been granted, nothing had been done by the defendants. In these circumstances there was no unreasonable delay in coming to Court.
24. The third question is whether under these circumstances the Court below was right in granting the temporary injunction.
25. It is contended on behalf of the appellants that where a plaintiff who is out of possession claims possession, the Court will not grant injunction against a defendant in possession under a claim of right unless the threatened injury would be irreparable, and we are referred to Lowndes v. Bettle (1864) L.J. 33 Ch. 451, Kesho Prasad Singh v. Srinibash Prasad Singh (1911) I.L.R. 38 Calc. 791; Woodroffe on Injunctions, 4th Ed., 302, and Halsbury's Laws of England, Vol. 17, paragraph 483.
26. In Lowndes v. Bettle (1864) L.J. 33 Ch. 451, Kindersley V.C. reviewed the various authorities relating to injunctions in cases of trespass and classified the cases under two heads: the one where the party against whom the application for the injunction is made is in possession, and the other, where the plaintiff is in possession and is asking the Court to protect his estate. The result of the cases was that when the plaintiff was out of possession, the Court would refuse to interfere by granting an injunction unless there was fraud or collusion or unless the acts perpetrated or threatened were so injurious as to tend to the destruction of the estate. Where the plaintiff was in possession and the defendant was a mere trespasser not claiming under colour of right, the tendency of the Court was not to grant an injunction in the absence of special circumstances but to leave the plaintiffs to his remedy at law, although an injunction would be granted if the Acts complained of tended to the destruction of the estate. But where the plaintiff was in possession and the defendant claimed under an adverse title, the tendency was to grant the injunction.
27. Since the Judicature Act, these distinctions between cases where the defendant committing the acts of trespass is or is not in possession and claims under colour of title or is a mere stranger are not of the same importance: see Kerr on Injunctions, 5th Edition, page 102. Section 25, Sub-section (8) of the Judicature Act, 1873, lays down:--'...If an injunction is asked either before or at or after the hearing of any cause or matter to prevent, any threatened apprehended waste or trespass such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise or (if out of possession) does or does not claim the right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or either of the parties are legal or equitable.'
28. In Kesho Prasad Singh v. Srinibash Prasad Singh (1911) I.L.R. 38 Calc. 791, the learned Judges (Mookerjee and Caspersz JJ.) held that where the plaintiff is out of possession and claims possession, the Court will refuse to interfere by grant of injunction against the defendant in possession under a claim of right; but where the threatened injury will be irreparable, an injunction will lie at the instance of a complainant out of possession. In that case the plaintiff had established his title to the estate (which was in the possession of the defendant), in the Court of first instance, and while an appeal by the defendant was pending, asked for an injunction restraining the defendants from spending any sums whatever, at any rate any sums in excess of the revenue and rents and the expenses for the management of the estate. The learned Judges pointed out that there was no suggestion that the defendants were about to commit an act in the nature of waste, that the plaintiff had another adequate remedy, as he could execute the decree he had obtained (he had obtained a decree for mesne profits also) and there by obtain full and ample relief, that the injunction if granted would be vague and indefinite; and, lastly, that the plaintiff could apply for the appointment of a receiver of the estate.
29. The statement of the law in Kesho Prasad's Case (1911) I.L.R. 38 Calc. 791, viz., that where a plaintiff, who is out of possession, claims possession, the Court will not grant an injunction against a defendant in possession under a claim of right, but if a threatened injury would be irreparable a complaint out of possession may have an injunction, is quoted in Woodroffe on Injunctions 4th Edition, 302. In an earlier passage in the same page the learned author states: 'In cases where the relief sought is ejectment, Courts in India may clearly by means of injunction secure the property from damage during litigation. At the same time care must be taken lest by interfering with the ordinary rights of ownership the mere institution of a suit should operate as a vexatious interruption to the enjoyment of property. The English Courts for special reasons formerly hesitated as to these cases and refused to interfere by injunction where the plaintiff was out of possession, unless there was fraud or collusion or unless the acts perpetrated or threatened were so injurious as to tend to the destruction of the estate.' These observations made by the learned author must be taken as subject to the qualification that the plaintiff must show that the interference of the Court is necessary to protect him from irreparable, or at least serious injury before the legal right can be established at the trial. (See Woodroffe on Injunctions 89). In Halsbury's Laws of England, Volume 17, paragraph 483, it is stated 'by the term 'irreparable injury' is meant substantial injury which can never be adequately remedied or atoned for damages.' By the term 'irreparable injury,' however, it is not meant that there must be no physical possibility of repairing the injury; all that is meant is that the injury would be a material one and one not adequately reparable by. damages: see Kerr on Injunctions, 5th Edition, 19. We were referred to the case of Mogul Steamship Co. v. M' Gregor, Gow & Co. (1885) 15 Q.B.D. 476, where Lord Coleridge C.J. observed:--'it may be that they will suffer some damage; it may be that they will for a time have a difficulty in carrying on their China trade, or may have to carry it on at a loss. But injury of that sort differs altogether from the injury which is called 'irreparable', to prevent which injunctions have heretofore been granted in the Court of Chancery, and are now allowed to issue from this Court. For instance, if a fine old ornamental tree in a nobleman's park be cut down, the injury is practically irreparable, and cannot be compensated in damages. It is in cases of that nature that an interim injunction issues. The injury here, if it be made out, obviously is not one of that character.' But although indicating the nature of 'irreparable injury,' it does not profess to be an exhaustive definition of 'irreparable injury,' and the case was one where the loss, which the plaintiff would have suffered in carrying on the trade, could be easily compensated by damages. In one sense it may be said that every injury to property may be compensated by damages, but in that sense no injunction can be granted in cases even between co-sharers or between a landlord and tenant, because the plaintiff may be compensated by damages. But money compensation may not be an appropriate and adequate remedy in every case of injury relating to immovable property, and we think that the question of 'irreparable injury' must depend upon the circumstances of each case.
30. We were referred to the case of Hilton v. The Earl of Granville (1841) 1 Cr. & Ph. 283 to show how reluctant the Court is to grant interim injunctions. In that case an injunction to restrain the working of valuable mines was refused although there was reason to apprehend that if the working was continued the plaintiff's houses upon the surface would be totally destroyed or irreparably damaged before the legal right could be decided. But in that case no action had been brought to have the legal rights determined, and there was delay in applying for the injunction; the injunction was refused on a consideration of the balance of inconvenience to the parties, and on condition of the defendants' making certain admissions for the purpose of enabling the plaintiff to bring an action. Of course an interlocutory injunction should not be lightly granted, because it would be a very serious thing if the person in possession were restrained from making use of the property merely because a suit has been instituted with respect to the property. As pointed out by Pigot J., in the case of Baddam v. Dhunput Sing (1889) 1 C.W.N. 429, 'the power of granting an injunction is one which has been perhaps a little lavishly bestowed upon the Courts in this country. It is a tremendous power, and one which the superior Courts must carefully guard themselves from exercising hastily or without solid grounds.' It is only in cases where property which it is essential should be kept in its existing condition during the pendency of the suit is 'in danger of being wasted, damaged or alienated,' that the Court ought to interfere so as to restrain persons who may turn out in the final event of the litigation to be the actual owners of the property from proper enjoyment and possession of it.
31. The learned Subordinate Judge referred to the principle laid down in Kesho Prosad Singh (1911) I.L.R. 38 Calc. 791, but held that it was inapplicable to the present case on the ground that the claim of right must be bond fide which in its opinion was not in the present case. But 'a claim of right' we think means 'under colour of some title' and as distinguished from the claim of a person who is in possession merely as a trespasser not claiming under any sort of title.
32. On behalf of the respondents reliance is placed on the observations of Jessel M.R. in case of Krehl v. Burrell (1878) L.R. 7 Ch. D. 551, which are as follows:
33. 'If with notice of the right belonging to the plaintiff, and in defiance of that notice, without any reasonable ground, and after action brought, the rich defendant is to be entitled to build up a house of enormous proportions, at an enormous expense, and then to say in effect to the Court, 'You will injure me a great deal more by pulling it down than you will benefit the poor man by restoring his right,'--of course that simply means that the Court in every case, at the instance of the rich man, is to compel the poor man to sell him his property at a valuation. That would be the real result of such a decision. It appears to me that it never could have been intended by the Legislature to bring such a result about. It never could have been meant to invest the Court of Chancery with a new statutory power somewhat similar to that with which railway companies have been invested for the public benefit under the Lands Clauses Act, to compel people to sell their property without their consent at a valuation. I am quite satisfied nothing of the kind was ever intended, and that, if I acceded to this view, instead of exercising the discretion which was intended to be reposed in me I should be exercising a new legislative authority which was never intended to be conferred by the words of the statute, and I should add one more to the number of instances which we have from the days in which the Bible was written until the present moment, in which the man of large possessions has endeavoured to deprive his neighbour, the man with small possessions, of his property, with or without adequate compensation.' That was an action for an injunction to restrain the erection of a building on a passage over which the plaintiff claimed a right, of way, where he had, on being informed of the defendants' intention, forthwith given him notice of his right and commenced the action, and the defendant had notwithstanding continued and completed the erection of the building complained of The plaintiff's right having been established at the trial, the Master of Rolls held that it was a case for a mandatory injunction and not for damages under Lord Cairn's Act, and made the observations quoted above. It is to be observed that it was not a case of a temporary injunction. The Court found that the plaintiff had established his right and gave a verdict accordingly, and in the circumstances of the case the Court held that a mandatory injunction, and not damages, was the proper remedy.
34. We are also referred to the case of Hemanta Kumar Roy v. Baranagore Jute Factory Co. (1914) 19 C.W.N. 442. In that case the plaintiffs were some of the superior landlords of the disputed property which consisted of two plots of land and claimed to have been indirect possession of about one-third of the property. The defendants who were in occupation of the remainder obtained a permanent lease from some of the co-sharers of the plaintiffs and commenced to dig the foundations for an extension of their factory house. The plaintiffs sued for partition and applied for a temporary injunction. The defendants notwithstanding notice of the application for injunction, expedited the execution of the building. It appeared that on partition the plaintiff could not conveniently be allowed any share of one of the plots, but must be limited to an allotment out of the other plot. It was held in these circumstances that the plot, a share of which only could be allotted to the plaintiff on partition, should be retained in status quo so that the Court might be free to grant such relief as it might think proper, and an injunction should be granted restraining the defendants from building on this plot for a period of one month during which the partition suit was to be tried out. In that case one of the parties would have been placed in a very disadvantageous position unless an injunction was granted. The case of Israil v. Shamser Rahman (1913) I.L.R. 41 Calc. 436 also was a case between co-sharers. The principle upon which injunction is granted in this class of cases, viz., cases between co-sharers is that the co-sharer, if not restrained from building, may be placed in an unfairly advantageous position than the plaintiff but that principle does not apply to a case where the defendant is a trespasser in possession under a claim of right. In such a case the defendant must walk out of the land if the question of title is decided against him and the considerations which may weigh with the Court in cases between co-sharers, or in light, air cases, in deciding at the final hearing whether mandatory injunction should issue or the plaintiff should be given damages, do not apply to a case where the defendant is found to be in possession of land belonging to the plaintiff, without any title whatsoever.
35. The learned pleader for the respondent contends that a temporary injunction may be granted in a case like the present under Order XXXIX, Rule 2, which speaks of 'injury of any kind.' But Order XXXIX, Rule 1 is the rule applicable to the present case, and not Rule 2 which is applicable to a case where the plaintiff seeks to restrain a breach of contract, or the commission of a wrong or tort.
36. It is next contended on behalf of the respondent that even if the defendants have protected interests in the land in dispute, they have as tenants no right to build on the western portion of plot No. 1 or to fill up the tank on plot No. 2, thus changing the character of the land altogether against the wishes of the landlord, and that a landlord is entitled to an injunction against the tenant in such a case. It is contended on the other hand, on behalf of the appellants, that the suit was brought against them as trespassers and not as tenants, and that the temporary injunction was applied for in connection with the case made in the plaint, viz., that the defendant was a trespasser, and that under the circumstances the plaintiff cannot now turn round and ask for injunction against the defendants on the ground that they are tenants, at any rate without an amendment of the plaint, and asking for injunction on the footing that the defendants are tenants. It is urged that if the defendants are sued as tenants, questions may be raised whether the acts complained of, would not come within what is called 'meliorating waste.' We are of opinion that having sued the defendants as trespassers and having applied for injunction on that ground, the plaintiff should not be allowed to claim an injunction on the footing that the defendants are tenants at any rate, without remanding the case and giving the defendants an opportunity of showing cause against injunction being granted on such a footing, and that will take a long time.
37. The last question for consideration is whether in all the circumstances of the case, the injunction granted by the Court below should be discharged. We have already found that the plaintiff has made out a prima facie title and there has been no unreasonable delay in coming to Court. The building (the staff-quarters) which has been erected by the defendants on the eastern portion of plot No. 1 has been allowed to stand by the Court below. No injunction has been granted with respect to the same and there is no appeal on behalf of the plaintiff against the order. It is only with respect to the western portion of plot No. 1 and the plot No. 2, that the injunction has been granted. It is stated before us on behalf of the appellants in this Court, that they want to build servants' quarters on the rest of plot No. 1 and to fill up the tank on plot No. 2 which is said to be in an insanitary condition. It is contended on the other hand, on behalf of the respondents, that this was not suggested in the Court below, that the defendants having got all that they wanted in the Court below are raising new matters in appeal, and that they have a large quantity of their other lands adjoining the lands in dispute on which they can build their servants' quarters. There is no doubt that the appellants opposed the application for injunction in toto, in the Court below, but so far as the records go, that there was no proposal of erecting servants' quarters on the rest of plot No. 1 or of filling up the tank in plot No. 2. Mr. Tosh in his affidavit stated that 'the staff-quarters with the lands in suit are integral parts of the mill and are absolutely required for its working, and the starting and. Working of the mill will be considerably delayed and my firm will be put to irreparable loss in consequence if the injunction prayed for be granted.' He further stated that his firm had spent 5 lakhs of rupees for the acquisition of the lands and construction of main buildings thereon, and about Rs. 85,000 for the construction of the staff-quarters and had entered into a contract with Messrs. Mackintosh Burn & Co., to 'complete the last mentioned building within 1917 and my firm will be seriously prejudiced and will suffer irreparable injury if the injunction be allowed.' There is no trace of any suggestion in any of the affidavits as to the tank in plot No. 2 being in an insanitary condition, which it was necessary to be filled up, or that it was necessary for the defendants to build servants' quarters on the rest of plot No. 1.
38. The learned Subordinate Judge seems to have thought that it would satisfy both parties if the building erected for the staff-quarters was allowed to stand, and an injunction was granted restraining the defendants from further building on or changing the character of the land. He observes 'The plaintiff alleged that there will be irreparable injury if the land-marks still existing on the boundaries of the disputed lands are effaced and done away with, and all possible opportunities and facilities for him to obtain possession thereof, if there be a decree in his favour be permanently lost to him. On the eastern boundary, there is still the foundation of Swarnamoyi's house existing. On the south and west there are public roads. The defendants should not be allowed to interfere with and efface or demolish these permanent boundary-marks. They should not also be allowed to further build up the lands but must be ordered by an injunction to stop all further structures upon the lands until the final disposal of the suit. These are reasonable prayers and in my opinion they should be granted to meet the case of both parties. In that case the plaintiff would no longer have any cause for complaint that he apprehends an irreparable injury. The defendant Company also cannot complain that their mill work will be stopped for want of erection of their staff-quarters, and there will then be a phenomenal loss of income.' Now, if the land-marks, still existing on the boundaries of the disputed lands, are 'effaced and done away with' by the erection of further buildings, there is danger of the enforcement of the right of the plaintiff being prevented and this may be said to constitute irreparable injury. Then the filling up of the tank on plot No. 2 and erection of buildings (servants' quarters) on the rest of plot No. 1, on which admittedly there were no buildings at any time, would change the character of the land, and in the event of the suit being decreed, the holdings will have to be pulled down and the tank re-excavated and it may be difficult to restore the lands to their former condition. It is to be borne in mind that in granting an interim injunction the Court should see on which side, in the event of obtaining a successful result to the suit, wilt be the balance of inconvenience, if the injunction do not issue, bearing in mind the important principle of retaining immovable property in statu quo.
39. It is suggested by the learned pleader for the appellants that the boundaries can be fixed by deputing a surveyor to measure the lands and prepare a map. But that would take some time, because there may be objections to the surveyor's report by one party or the other, as there appears to be a difference between the parties about the exact area of the first plot of land, and they will have to be decided. On the other hand, the suit itself which is pending in the Court below may be tried out within two months or even earlier, if an order for expediting the hearing is made by us. This would not be sufficient ground for maintaining the injunction if we were satisfied that the defendants would be seriously inconvenienced by the order restraining them from erecting the buildings even for this period. But the order for injunction was passed by the Court below on the 5th February 1918, and the suit was tied up for nearly one year by this appeal preferred by the defendants. Were it not for this appeal, the suit could have been disposed of long ago. The appeal itself could have been heard long ago if the appellants had moved the Court for an early hearing.
40. In all the circumstances of the case, we think the proper course would be to direct the trial of the suit by the lower Court at once, so that the suit may be disposed of within a period of two months. If the suit is not disposed of within two months from the date of arrival of this order in the Court below, owing to any default on the part of the plaintiff, it will be open to the defendants to apply to the Court below for the discharge of the injunction. If, in the meantime, the defendants find it necessary to construct servants' quarters on the rest of plot No. 1, they may erect temporary structures for that purpose, but not so as to efface the boundary-marks; and if any difficulty arises in the erection of the temporary structures for the servants' quarters on plot No. 1, it will be open to the parties to apply to the Court below, and that Court will give proper directions in the matter.
41. The order for injunction will be varied accordingly. We make no order as to costs. The records with a copy of this order will be sent down to the Court below within the course of the next week.