S.C. Ghose, J.
1. This is an application by plaintiff for an injunction restraining the defendant No. 9 from constructing or continuing the construction on the eastern portion and courtyard of the premises No. 89, Burtolla street, in Calcutta within the said jurisdiction. According to the plaintiff, the plaintiff is the owner of an undivided l/4th share of the said premises. The defendant No. 10 is also the owner of an undivided 1/4th share and the defendant No. 1 is the owner of an undivided 1/2 share of the said premises. The defendants Nos. 2 to 8 are shebaits and/or trustees to the said estate of the defendant No. 1.
2. The defendant No. 9 is the lessee under an instrument of lease of the eastern portion of the said property for a period of 50 years with the option to extend the same for a further period of 25 years. The defendant No. 9, according to the plaintiff has been causing constructions to be made on the eastern portion of the said property to the detriment and prejudice of other co-owners including the plaintiff.
3. It must be noted that the only other co-owner apart from the plaintiff even if the property be joint as alleged is the defendant No. 10. The defendant No. 10 is not objecting to the said construction and as a matter of fact is supporting the case of the defendants Nos. 1 to 9.
4. The present suit has been filed by the plaintiff for partition by metes and bounds of the said premises No. 89, Burtolla Street, and allotment of his share to him in severalty. It is the admitted case of both the parties that a long time ago the said premises No. 89, Burtolla Street, was partitioned into two separate portions, eastern portion and western portion between the predecessors in title of the plaintiff and defendant No. 10 on the one hand and the predecessors in title of the defendants Nos. 1 to 8. The respective parties, the plaintiff and the defendant No. 10 and/or their predecessors in title on the one hand and the defendants 1 to 8 and their predecessors-in-title on the other were letting out their respective portions of the said premises to tenants, realising rents, issues and profits therefrom and instituting suits against such tenants for ejectment as well as for recovery of rents separately. Even the rates and taxes payable to the Corporation of Calcutta had been apportioned and paid separately in respect of the said portions by the said respective parties. The rates and taxes were apportioned and being paid separately since the year 1928-29. Copies of the ejectment proceedings and proceedings against the tenants have been annexed to the affidavit of Kala Chand Daw affirmed on 4th February, 1970. From the said documents it appears that the said eastern portion of the property was being treated and described as a divided and separate property by the predecessors in title of the plaintiff. According to the plaintiff the aforesaid conduct of the parties and user of the property only shows that the parties under an arrangement amongst them have been in exclusive possession of different portions of the said property but that cannot prevent partition of the property by metes and bounds and allotment of different portions of the property to the owners.
5. Mrs. Banerjee contends that the allegation as to partition of the property really amounts to denial of the co-owners' title to the western portion of the property and this amounts to ouster and as such injunction should be granted. In any event according to Mrs. Banerjee a lessee of a co-owner cannot affect the rights of other co-owners of the property in respect of the property. In the case of Israil v. Samser Rahman, 18 Cal WN 176 (178) = (AIR 1914 Cal 362 at p. 363) it was observed as follows: '..... the mere circumstances that one co-sharer has taken possession of a portion of joint property does not entitle the other co-sharers to claim joint possession; in other words, sole occupation by one co-sharer does not necessarily constitute ouster of the other co-owners. At the same time it does not follow that because a co-owner is, with the tacit or express consent of his co-sharer, in sole occupation of a portion of joint property, he is entitled to change the nature of that possession or to use the property in a mode different from that in which it had previously been used,'
6. In an interlocutary application like the present one the court must consider prima facie the facts of the caseand the rights and obligations of the parties with regard to the property as claimed and decide where the balance of convenience lies. The Court should consider whether an order of injunction should be passed and status quo should be maintained.
7. It is undoubtedly true that the lessee of a co-owner cannot have better right than a co-owner. The case of Niranian Mukerjee v. Saudamini Dasi, 30 Cal WN 511 = (AIR 1926 Cal. 714 (FB)) laying down the proposition that a co-owner does not take property on allotment to him subject to the lease granted by his co-owner alone in respect of that property, has no bearing to the issues involved in the instant application.
8. The case of Chanan Singh v. Santa Singh, AIR 1950 Pepsu 5 deciding that the transferee of a portion of a joint property of a co-owner cannot be dispossessed by other co-sharers until final partition has taken place also does not throw any light on the issues involved in the instant case.
9. I have already noted that in the instant case the parties and their predecessors in title proceeded all along on the basis that the eastern portion and the western portion of the property were separate, divided and distinct properties. That will appear from the facts noted above as well as the copies of the documents annexed to the affidavit of Kala Chand Daw affirmed on 4th February, 1970. The factum that the eastern and western portion of the said property are divided, distinct and separate properties is asserted by the owners of 3/4th shares of the said property. From the averments made in different affidavits it is clear that the plaintiff knew of the transfer of the eastern part of the said property to the defendant No. 9. The plaintiff must have known of the terms of the said lease. The defendant No. 10 also has demised his undivided l/4th share in western portion of the said property to the defendant No. 9. It is only when the negotiations for the demise of the plaintiff's share of the said western portion of the said property fell through, the plaintiff has instituted the present suit and made the present application. But that will not matter really provided the plaintiff has the unquestioned right to have the reliefs claimed in the instant application.
10. In the case of Akshay Kumar Shaha v. Bhajgobinda Shah, AIR 1930 Cal 341 it was observed as follows:--
'..... In this court it hasbeen held that there is no such broad proposition that one co-owner is entitled to an injunction restraining another co-owner from exceeding his rights absolutely and without reference to theamount of damage to be sustained by the one side or the other from the granting or withholding of the injunction. Shamnagar Jute Factory Co. Ltd. v. Ram Narain Chatterjee, ((1886) ILR 14 Cal 189). This principle has been consistently recognised in later decisions: Joy Chunder Rukhit v. Bippro Churn Rukhit, ((1886) ILR 14 Cal 236) and Fazilatunnessa v. Ijaz Hassan, ( (1903) ILR 30 Cal 901). In the case of Watson & Co. v. Ramchand Dutt, ( (1890) ILR 18 Cal 10 (PC)), their Lordships of the Judicial Committee observed.'
'In Bengal the Courts of justice, in cases where no specific rule exists, are to act according to justice, equity, and good conscience, and if in a case of shareholders holding lands in common, it should be found that one co-sharer is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other shareholder to appropriate to himself the fruits of the other's labours or capital.' Quoting this passage their Lordships in their later decision in Lachmeswar Singh v. Manowar Hossein, ( (1891) ILR 19 Cal 253 (PC)) observed that:
'the Courts should be very cautious of interfering with the enjoyment of the joint estate as between their co-owners, though they will do so in proper case.'
11. It was also observed in the said case that even in a case where the co-owners come to the court prior to the construction of building by another co-owner for temporary injunction, 'even then unless there is ouster or other substantial injury, no restraint should be put and no injunction should be granted.'
12. The eastern portion of the property has long since been in the exclusive possession of the defendants Nos. 1 to 9, actual or constructive. As a matter of fact, the said defendants had to pay the charges to the Corporation of Calcutta for demolition of the first floor and second floor of the building on the said portion when demolished by the Corporation of Calcutta in accordance with the provisions of the Calcutta Municipal Act, 1951. The proposed construction is sought to be made only in the eastern portion of the said property. This does not affect the plaintiff's enjoyment or actual user of the property. No particulars of any injury that may be suffered by or caused to the plaintiff has been alleged either in the plaint or in the petition. The plaintiff in my opinion has not been able to show that he has been or will be prejudiced. In any event if and when the property is found to be joint at the time of passing the preliminary decree and allotments are directed to be made the partitioning court will certainly take into consideration the rights and liabilities of all the parties and adjust the same in the preliminary decree as was observed in AIR 1930 Cal 341. The relevant portion of the said judgment is set out hereunder: '..... but the partitioning Court will not be powerless to adjust any equities that may arise for consideration in view of the fact that the defendants have erected the building without the plaintiff's consent and in spite of his protest.'
13. In the facts and circumstances of the case the balance of convenience lies in my opinion against granting an order of injunction which will substantially and irreparably injure and prejudice the defendant No. 9, the lessee.
14. For the aforesaid reasons this application must fail and is dismissed.
15. Costs of this application will be costs in the cause.