1. The parties to this suit are joint proprietors in some land. The defendant, in spite of the protest of the plaintiff, has dug a tank in a portion thereof. The plaintiff now sues to have his title declared in the land so occupied, and he asks for an order directing the defendant to fill up the tank that has been dug, so as to restore the land to its former condition.
2. The plaintiff has obtained a decree in both the lower Courts.
3. It has been contended before us, as it has been found by the lower Courts, that the conduct of the defendant in proceeding to excavate the tank in spite of the protest in itself justifies the order passed. The learned pleaders who have argued this case with great care have cited a great number of cases bearing on the subject commencing from Gurudas Dhar v. Bijoy Gobind Bural 1 B.L.R.A.C. 108 : 10 W.R. 171 and Lala Biswambhar Lal v. Rajaram 3 B.L.R. App. 67; down to that of Nocury Lal Chuckerbutty v. Bindabun Chunder Chuckerbutty 8 C. 708. We are also referred to a case recently decided by Wilson and Porter, JJ. (Second Appeal 1164 of 1885), on the 20th of April last, Shamnagar Jute Factory Co. v. Ram Narain Chatterjee 14 C. 189, in which the cases cited before us were also considered. We fully adopt the opinion expressed by the learned Judges in that case. The result of the cases cited before us seems to be in accordance with the principle laid down by Sir Barnes peacock in the case of Lala Biswambhar Lal v. Rajaram 3 B.L.R. App. 67, which is to the effect that before the Court will proceed in the manner asked by the plaintiff in this case, he must show that he has sustained some injury by the act complained of. We understand the term 'injury' to mean something substantial, something that materially affects the position of the parties. In the present case, the first Court describes the injury caused to the plaintiff in the following terms : 'The land on the eastern portion of plot No. 2, whereon the tank has been excavated, was not fit for cultivation. There was an excavation on the east of the plot No. 2, but the portions of the plots Nos. 1 and 3, whereon part of the tank has been excavated, were fit for cultivation. The defendant has by causing the tank to be excavated taken in a manner exclusive possession of the space whereon the tank has been excavated. The plaintiff will not be able to gain any income out of the tank.' The lower appellate Court expresses no opinion on this point, but we may take it that it was not disputed by the defendant, and that it correctly represents the result of the excavation of the tank. The fact found that a portion of the land on which the tank was excavated was fit for cultivation does not, in our opinion, properly describe any injury of a substantial nature to the plaintiff, such as would justify the order of the lower Courts, in putting the defendant to the expense of re-filling the tank. The proper remedy in the present case seems to be for the parties to partition the land so as to hold exclusively that which represents their respective shares. With regard to the ground on which the lower Courts gave the plaintiff a decree, and which has been pressed on us in this Court, we would refer to the judgment of Mr. Justice Wilson in Shamnagar Jute Factory Co. v. Ram Narain 14 C. 189, in which he says : 'But we are not aware of any decision which establishes the broad principle contended for by the plaintiff that one co-owner is entitled to an injunction restraining another from exercising his rights absolutely, and without reference to the amount of damages to be sustained by the one or the other from the granting or with holding of the injunction ;' and the same principle would apply to the case now before us in which the Court is asked to compel the defendant to undo the effect of an act committed by him without the consent of the co-owner. Under such circumstances we think that the order of the lower Courts should be set aside and the suit dismissed with costs in all the Courts.