Salil Kumar Datta, J.
1. This is an appeal against judgment and decree of reversal. Plot Number 83 Mouja Andul P.S. Sankrail is a common passage in which the plaintiffs and the defendants, as transferees, are co-sharers. The common passage is flanked on one side by the houses of the plaintiffs Nos. 1 and 2 and on the other side by the houses of the plaintiff No. 3 and other defendants. According to the plaintiffs' case, the common passage was created for ingress and egress, space for repairs of structures, passage for light and air, and rain water and also for laying electric wires. There was an agreement to keep the common passage open to the sky for beneficent enjoyment of the dwelling houses on either sides of the common passage and their privacy was thereby maintained. The defendants by force completed all arrangements to construct a balcony from their house over the common passage. It was said that the defendants had no right to make such construction, which if made would cause permanent obstruction to the common passage and change its nature and character causing irreparable injury to the other owners, the plaintiffs. The plaintiffs in the circumstances instituted the suit for permanent injunction restraining the defendants from making any construction over the common passage.
2. The defendants filed their written statement denying that there was any agreement among co-sharers to keep the common passage free upto the sky-Further, it was said, there would be no obstruction to the common passage as the balcony 16 2/3' X 2 1/2', would be supported by the first floor roof of the defendants' house, covering only an insignificant portion of the common passage while there would be no occasion for affecting the light and air to the plaintiffs' residences as they are far away from the proposed balcony.
3. The learned Munsif, on a trial of evidence, held that every co-sharer has the right to use every part of the joint pathway, which was not a public pathway. The proposed construction would reduce the gap of 5 1/2' to 3' encroaching the pathway. The defendants had no such right to encroach the common pathway and the question of encroachment of light and air or of agreement was immaterial. The suit was accordingly decreed and the defendants were permanently restrained from making any construction over the common passage.
4. The appellate Court reversed the decree on the finding that the suit passage after vesting of raiyat's interest on enforcement of Chapter VI of the West Bengal Estates Acquisition Act, 1953 was no longer common. The common passage was recorded in four khanda khatians, Khatian Nos. 113 and 53 in the name of the plaintiffs in .04 and .01 sataks while khatian Nos. 54 and 932 in the name of the defendants in nil and .01 sataks respectively. Relying on the decision in Madan Mohan v. Sishu Bala, : AIR1972Cal502 (FB), the Court held that as the co-sharers of the holding ceased to be co-sharers and each raiyat of the holding became a direct tenant under the State in respect of the holding he is entitled to retain, the common passage ceased to be a common passage from the date of vesting. There was no proof that the proposed projection would be beyond the portion of the defendants' khatian and no agreement to keep the suit land free was established. Accordingly the appeal was allowed and the suit was dismissed. The present appeal is against this decision.
5. Before we proceed to consider the points in controversy in appeal, the appellate judgment holding that common passage was no longer common after enforcement of Chapter VI may be examined. There is no dispute that after vesting of raiyat's interest an undivided share in the land can be the subject-matter of a separate tenancy and can constitute a holding of a raiyat or under-raiyat as has been held in the said decision. If a plot of land continues to be jointly owned in undivided share by different persons after vesting even as part of their separate tenancy, they become joint owners of such land and are subject to the legal rights and equities of co-sharers amongst themselves under the general law. Such rights have not been taken away by the laws of land reforms and the laws of co-ownership continue to be in full force and effect except in regions specially covered by the relevant statutes.
6. The finding of the Courts below, that no agreement amongst co-sharers regarding use of the suit land was established except that the land was used as private pathway is unassailable in this appeal as a finding of fact. It is also evident on the defence case that the proposed balcony will have no support from the ground obstructing free and unrestricted use of the land. The question for consideration is the extent of the right of one co-sharer to an injunction in respect of any action by the other co-sharer in excess of his rights in the land jointly owned by them in undivided shares.
7. Mr. Gopal Chandra Mukherjee learned Advocate appearing for the plaintiffs-appellants referred to the decision in Israil v. Samser Rahman, 18 Cal WN 176 = (AIR 1914 Cal 362) in which it was held that the possession of a portion of joint property by one co-sharer does not necessarily constitute ouster of the other co-owners. But it does not follow that because one co-owner is in sole occupation of a portion of the joint property with the tacit or express consent of his co-sharers, he is entitled to change the nature of that possession or to use the property in a mode different from that in which it has been previously used.
8. Mr. Mukherjee strongly relied on the decision in Shibba Mal v. Naurang Mal, AIR 1917 All 118 in which the Division Bench in Letters Patent appeal, set aside the judgment of the single Judge with the following observations:--
'......... ... He (the learned Judge) seems to have thought that just as a private individual cannot maintain a suit in respect of a public highway without showing special damage so also one of two joint owners of a piece of land which has been used as a passage cannot maintain a suit, unless he can show that the right of passage has been substantially interfered with. The reason why a private individual cannot maintain a suit in respect of public property is because the property does not belong to the private individual- But one joint owner of private property has no right to do anything which will make the joint property more exclusively his. It cannot for a moment be disputed that if the land, instead of being used as a passage, had been left waste the defendant would not have been entitled to have built a balcony projecting over the land. In our opinion, the fact that the land was used as a passage can make no difference whatsoever.' It was contended that a joint owner is entitled, as of right, to an injunction restraining other co-sharers from using the joint property which would make the property more exclusive to them.
9. Mr. Manindra Nath Ghosh, with Mr. Tapas Chandra Roy and Alak Chakravarty learned Advocates for the defendant submitted on the other hand that the above decision is not a correct enunciation of the principle of law. The decisions of the Calcutta High Court lay down that a joint owner is not entitled as of right as a joint owner to restrain another joint owner in his acts without consent of the other joint owners in respect of any portion of the joint property unless special damage thereby sustained is established by the complaining joint owner. It was further submitted that the Allahabad High Court decision was not even subsequently followed by the said High Court and other High Courts have followed the view laid down by this Court in cases noted below.
10. In the Shamnugger Jute Factory Co. Ltd. v. Ram Narain Chatterjee, (1886) ILR 14 Cal 189, it was held that granting of injunction under Sections 54 and 55 of the Specific Relief Act, 1877, is regulated by the principles of equity acted upon by the Courts of Equity in England and long since introduced in this country as the principles of law were in accordance with equity and good conscience. The Court observed that in respect of various kinds of proprietary rights, such as to restrain the infringement of easements and other rights in many cases injunctions have been granted;
'But we are not aware of any decision which establishes the broad proposition contended by the plaintiffs, that one co-owner is entitled to an injunction restraining another co-owner from exceeding his rights, absolutely, and without reference to the amount of damage to be sustained by the one side or the other from the granting or withholding of the injunction.'
The Court held that the granting of an injunction is a matter of the judicial discretion of the Court, and the award of money damages to the plaintiffs by the District Judge was approved.
11. In Joy Chunder Rukhit v. Bippro Churn Rukhit, (1886) ILR 14 Cal 236, it was observed following the above and earlier decisions that before a Court will, in the case of co-sharers, make an order directing that a portion of the joint property alleged to have been dealt with by one of the co-sharers without the consent of the other should be restored to its former condition (as. for instance, where a tank has been excavated), a plaintiff must show that he has sustained, by the act he complains of some injury which materially affects his position. It was held while dismissing the suit that a portion of the land on which a tank has been excavated by the defendant was fit for cultivation does not constitute an injury of a substantial nature such as would justify an order of that nature.
12. In Ram Nandan v. Jai Gobind, AIR 1919 Pat 445, the decision in Shibba Mal's case AIR 1917 All 118 though considered was not followed and the Court followed the Calcutta High Court decisions. It was laid down that before a Court will, in the case of a co-sharer, make an order directing that a portion of the joint property alleged to have been dealt with by one of the co-owners without the consent of the other should be restored to its former condition a plaintiff must show that he has sustained, by the act he complains of, some injury which materially alters his position.
13. In S.S.V. Krishnan Pillai v. Kilasathammal, AIR 1928 Mad 810, the Court was considering the erection of a platform and a shed thereon over a lane of 5 1/2 feet wide used by both parties as passage with the defendants' buildings on both sides of the passage. While confirming order of removal of the support, the Court on the balance of convenience took into consideration if the encroachment of common rights committed by the defendant resulted in interference of the plaintiff's enjoyment or accustomed user of the lane and refused the injunction prayed for.
14. In Akshay Kumar v. Bhajagobinda Shaha, AIR 1930 Cal 341, the Court noted the view of the Allahabad High Court that one of the several joint owners of land is not entitled to erect a building upon the joint property without consent of the other joint owners notwithstanding that the erection of such building may cause no direct loss to the other joint owners. The Court also noted that this view was not consistent with the line of decisions of this Court which 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 the amount of damage to be sustained by the one side or the other from the granting or withholding of injunction.
15. The above principle laid down by this Court was followed in Manilal Ratanchand v. Nanubhai, AIR 1947 Bom 394 and an injunction limited to exceeding projection of the balcony beyond two feet of five feet lane was granted against the defendants.
16. The Full Bench of the Allahabad High Court in Chhedilal v. Chhotey Lal : AIR1951All199 considered all the relevant decisions on the subject and held that question of what relief should be granted to the plaintiff in event of the invasion of his rights will depend on the circumstances of each case and there can be no inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. The relief may be granted if the evidence establishes that the plaintiff cannot be adequately compensated at the time of partition and that greater injury will result to him by refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by granting of the relief, the Court will no doubt he exercising proper discretion in withholding the relief.
17. In Khimji Mulji v. Popatlal Bhanji, AIR 1951 Sau 85, a case strongly relied on by the defendants, following the Calcutta decisions and on a conspectus of the relevant cases the Court refused an injunction when the projection over common passage was 3 1/2 feet at a height of over 12 feet and no inconvenience or discomfort was likely to be caused to the plaintiff nor his right of way was likely to be injured by the overhanging balcony.
18. Consistent with the decisions.of this Court, the position in law is asfollows:--
(a) the co-owner is not entitled to aninjunction restraining another co-ownerfrom exceeding his rights in the common property, absolutely and simply because he is a co-owner.
(b) before an injunction can be issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or accustomed user of the joint property would be inconvenienced or interfered with.
(c) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.
19. We shall now consider the evidence adduced on behalf of the plaintiffs. According to the plaint, the proposed construction will interfere with egress and ingress over the passage, space for scaffolds for repairs, light and air, movement of rain water as also with laying of over-head electric wires and privacy of the plaintiffs families. It has also been stated that opposite to the proposed construction across the common passage there is the boundary wall of the plaintiffs and thereafter, lies their tank. In evidence the case was made that the proposed construction will seriously interfere with the passage Of light and air. There is also indirect hint about interference with privacy as their bath rooms and latrines are stated to be by the side of the proposed balcony. It was also said that if the proposed construction is permitted, the passage will be converted into a tunnel as the other co-owners would start constructions projecting over the balcony.
20. It may be mentioned here that the plaintiffs came to Court at the earliest opportunity before the defendants could start the construction and the injunction has been continuing. Delay in moving the Court has been held in many cases as fatal to the grant of any relief which is not the case here. The proposed construction cannot be deemed to be ouster of the other co-owners from the common passage and this has not been disputed. The plaintiffs, however, must establish that they would suffer an injury which would materially affect their accustomed user of the common passage. As the proposed construction will have no support from pillars on the land of the common passage and will be situate on the level of the existing first floor of the building of the defendants, there will be no obstruction to the user of the common passage. There is no evidence that the proposed balcony, which will be projecting not more than 2 1/2' X 16 2/3' over the common passage, of about 200 feet, will obstruct the taking of overhead electric lines through the common passage. Obstruction of light and air, as contended, does not appear to interfere with the accustomed user or enjoyment of the common passage by the plaintiffs. On the materials on record, the plaintiffs have not been able to establish that they would suffer such injury as would materially affect their position or enjoyment or accustomed user of the common passage. The appeal accordingly must fail and is dismissed though for reasons different from those of the appellate Court as indicated above. There will be no order for costs in the circumstances.
21. Mr. Roy prays for leave to appeal under Clause 15 of the Letters Patent and leave is granted.