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Nocury Lall Chuckerbutty Vs. Bindabun Chunder Chuckerbutty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal707
AppellantNocury Lall Chuckerbutty
RespondentBindabun Chunder Chuckerbutty and ors.
Excerpt:
co-sharers of land - removal of building erected by one of several co-sharers-- acquiescence. - .....may be inapplicable to a case in which, as in the present case, it is sought to remove a permanent building erected in the infringement of the rights of other co-sharers. there is a considerable difference between a case in which the other co-sharers, acting with diligent watchfulness of their rights, seek by an injunction to prevent the erection of a permanent building; and a case in which, after a permanent building has been erected at considerable expense, he seeks to have that building removed. in a case such as that last mentioned, the principle which seems to have been settled by the decisions of this court is this, that though the court has a discretion to interfere and direct the removal of the building, this is not a discretion which must necessarily be exercised in every case;.....
Judgment:

Field, J.

1. The plaintiff in this case sued to have a building removed, which had been erected at very considerable expense upon a piece of land, which has been found to be the joint property of Hindu co-sharers. There is a considerable number of decisions connected with or bearing upon the question at issue in this ease. Some of these decisions are directed, to define what are the rights of a Hindu co-sharer as regards the use of land which is the joint property of himself and other co-sharers. Others of these decisions are concerned with the proceeding by injunction, and the circumstances, under which an injunction should be granted when the rights of other co-sharers are infringed. A third class of these cases consists of decisions in suits brought to remove permanent buildings erected by one co-sharer upon land forming joint property, and in the alleged infringement of the rights of the other co-sharer. The observations which have been made by the learned Judges of this Court in many of these cases, must be read and understood with reference, to the particular facts of the case with which they were dealing, and the particular remedy sought in that case. Observations made with the object of defining the right of one Hindu co-sharer may be inapplicable to a case in which, as in the present case, it is sought to remove a permanent building erected in the infringement of the rights of other co-sharers. There is a considerable difference between a case in which the other co-sharers, acting with diligent watchfulness of their rights, seek by an injunction to prevent the erection of a permanent building; and a case in which, after a permanent building has been erected at considerable expense, he seeks to have that building removed. In a case such as that last mentioned, the principle which seems to have been settled by the decisions of this Court is this, that though the Court has a discretion to interfere and direct the removal of the building, this is not a discretion which must necessarily be exercised in every case; and, as a rule, it will not be exercised unless the plaintiff is able to show that injury has accrued to him by reason of the erection of the building, and perhaps further, that he took reasonable steps in time to prevent the erection. In the present case the Courts below have come to the conclusion that this discretion should not be exercised so as to direct the removal of the building; and the view which has thus been taken by the Courts below is one with which we see no reason to interfere on appeal.

2. This appeal is dismissed with costs.


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