1. The present suit was brought by Nandu Lall Gossami to recover joint possession, as before, of a portion of land within the town of Serampore, by setting aside the defendants' allegation of possession and by demolition of a structure called a nowbutkhana raised by the defendants on the land.
2. The plaintiff, it seems, was entitled to an undivided eight-anna share of this land, the other eight annas belonging partly to the defendants and partly to one Gopal Chunder Gossami.
It appears that at the time of the Doorga Poojah in 1876, the defendant Shama Churn had erected upon this joint piece of land the nowbutkhana in question which, as the Judge says, was intended for the accommodation during the festival of a band of musicians. The plaintiff objected to this erection, and thereupon a dispute arose, which came under the cognizance of the Joint Magistrate of Serampore under Section 530 of the Code of Criminal Procedure, and the Joint Magistrate made an order that two cottas, out of the entire piece of live cottas, should remain in the separate possession of the defendants. Thereupon, this plaint was filed on the 4th December 1876, although it bears date the 20th November of that year.
3. The defendants' answer was, that they being entitled to a four-anna share of the said property, held possession of it in the manner best suited to their convenience and raised a simple bamboo nowbutkhana thereon. 'The said land', they said, 'should remain in our possession for the convenience it affords, and we have accordingly been in possession of it'. They said they had no objection to a partition of the land being made with reference to the convenience of the sharers, and that they had instituted a suit for that purpose. Besides this defence, which I may say was no defence on the merits, there was also an objection as to valuation. It was said that the suit was greatly over-valued.
4. On the case coming for trial before the Subordinate Judge, he first considered the question of valuation and came to the conclusion that there were probable grounds for the plaintiff to fix the valuation above Rs. 1,000'. He says: 'I shall not throw away his suit, but I must exercise my discretion in according costs'. On the merits he says: 'I have to consider only a question of law, whether the sharer of an undivided plot of land can take exclusive possession of his share without the consent of the other shareholders. The excavation of the land and the erection of the nowbutkhana by the defendant are acts of exclusive possession which the Joint Magistrate has confirmed. I am bound to say that the defendant was not justified in taking exclusive possession of a specific share of an undivided plot of land, every particle of which belongs to all its owners. The proper remedy was by a suit for partition. The defendant states that he has brought a suit for partition, and according to his own showing he was not competent to take exclusive possession without the consent of his co-sharers'. He accordingly decreed the suit in favour of the plaintiff, and directed that the plaintiff should remain in joint possession of the undivided land till the decision of the defendants' suit for partition.
5. It is not necessary that we should now advert to certain other proceedings which arose, and which the District Judge, not altogether without reason, considers to have been brought about by the want of decision shown by the Subordinate Judge in giving his judgment in this case. But the judgment was appealed to the District Judge, who has entirely reversed the judgment and decree of the Court below. He has done so upon several grounds:firstly, upon the ground that the Subordinate Judge had no jurisdiction to try the suit. That appears to be undoubtedly a mistake, because by Section 19 of Act VI of 1871, the jurisdiction of a Subordinate Judge extends, subject to the provisions in Section 6 of the Code of Civil Procedure, to all original suits cognizable by the Civil Courts. The provision contained in Section 6 is, that every suit shall be instituted in the Court of the lowest grade competent to try it. Therefore, as the Court of the Munsif had concurrent jurisdiction in this case with that of the Subordinate Judge, the plaintiff was bound to file his suit in the Court of the Munsif if the valuation was below Rs. 1,000. But the plaintiff valued his suit at more than Rs. 1,000, and the Subordinate Judge considered, in regard to the whole circumstances of the case, that there was probable ground for fixing the valuation above Rs. 1,000; and it seems to me very clear that there was such ground, because the suit related not merely to the right to possession and the manner of possession over the whole of this piece of land, which was no doubt valuable ground, but it also related to matters connected with the comfort of the plaintiff and his family, and therefore the valuation of the suit might very well be much more than the mere selling price of the two pottas of land over which the defendants had been allowed to exercise exclusive possession. But irrespective of that, the Appellate Court had, it seems to me, no authority to reverse the judgment of the Court of first instance upon a question of valuation, unless, on appeal, it thought that the question of valuation had been decided so as to cause injury to the Government revenue. But in this instance the case was just the contrary. The Judge, therefore, had no sort of competence to set aside the decision of the Subordinate Judge on this ground. Even if he had, I doubt very much whether it would have been a valid ground for setting aside the judgment of a Court which had jurisdiction, especially as the matter of costs had been properly provided for and as the venue of appeal was not affected. However, it is quite clear that this part of the Judge's order is quite without authority.
6. Having thus determined the question of valuation, the Judge proceeds to deal with the case on the merits, and on that part of the case also he differs in toto from the Court below. He says: 'On the merits also the Subordinate Judge is in my opinion equally wrong. The question whether the plaintiff had any right to have the nowbutkhana removed ought certainly to have been tried, if the suit was entertained at all; that was in fact the only question on which the parties joined issue. Had such an issue been tried, I do not for a moment doubt that it would have resulted in favour of the defendants. They are owners of the land exactly as much as the plaintiff is, and their right to occupy a part of the land for a very temporary purpose is at least as good as the plaintiff's right to restrain them'.
7. I think the Judge is wrong in saying that that was the only question on which the parties were at issue. The parties were at issue on the question whether the defendants were entitled by virtue of the Magistrate's order to retain exclusive possession of two out of five cottas comprising the joint land. I confess that I am at some loss to understand the proposition which the Judge there lays down, that the defendants' right to occupy a part of the land for a very temporary purpose was at least as good as the plaintiff's right to restrain them. If that were so, it is clear that no suit under any circumstance could be maintained by one owner of a joint property to restrain the use of it in any manner whatever by the other co-sharers. The Judge then recites the decision in the case of Lala Bishwambhar Lal v. Rajaram (3 B.L.R., Ap., 67), which case he seems to think to be on all fours with the present case. But it seems to me that the circumstances of that case are very different. I entirely concur in the judgment of Sir B. PEACOCK. In that case the learned Chief Justice remarked: 'This is a case in which apparently no injury to the plaintiff has been caused by the erection of the wall, and that, therefore, the plaintiff ought to be left to such remedy as he may have without applying to a Court of Equity for assistance in having the wall demolished. He may, if he think fit, apply for a partition, but I do not think that it would be equitable, after the defendant has gone to the expense of building the wall upon the land of which he was a joint owner, to have that wall demolished at the suit of his joint co-sharer, without showing that it causes any injury to the plaintiff'.
8. Now we have not gone into the evidence in this case; but I do not think it needs the production of evidence to show that the use by one co-sharer of a very small piece of land of which other persons are entitled to joint use and enjoyment by erecting upon it a bamboo stage for the accommodation of a band of musicians, must cause very considerable annoyance and discomfort.
9. It was suggested by the learned Counsel who appeared for the respondents, and who for that purpose availed himself of an argument employed by the Joint Magistrate in the proceedings which arose out of this dispute, that the occupants of the nowbutkhana would not be on the land but in the air, and that the general enjoyment of the land would not be interfered with.
10. I think the learned Counsel, like the Magistrate, forgot how small the land was. It was about five cottas, and it seems impossible to conceive any sort of enjoyment by the other co-sharers of that piece of land if one of them was allowed to occupy it by placing thereon a structure fit for occupation of a band of musicians. It appears to me that such occupation by one of the joint owners is so interfering with the comfort of his co-owners that the Court ought to interfere to restrain it. There is no suggestion here that the defendants have been put to heavy expense, or that the inconvenience or loss to them in removing the structure would be great. We are informed that the bamboos or sticks which supported the second nowbutkhana are still there, and if the parties are disposed to be litigious, no doubt these sticks may furnish ground for further disputes. We think it right, therefore, to say that the defendants, in our judgment, are not entitled to retain these bamboos as part of the nowbutkhana on the land in dispute.
11. But whether that be so or not, it would seem that the plaintiff had a further substantial cause of action. Even if the erection of the nowbutkhana, there had been consistent with law and the rights of the plaintiff, undoubtedly the order for separate possession of these cottas could not be supported, and the plaintiff was entitled to get a decree. The Judge, therefore, was quite wrong in ordering the dismissal of this suit, and I must say that I see with great regret in the judgment of Mr. Grant an observation that 'had he', meaning the plaintiff, in his turn exercised similar forbearance when, in October last, the defendants, as they had every right to do, proceeded to set up another temporary nowbutkhana, the unhappy litigation consequent thereon would have been avoided'. It is quite clear that however defective in point of expression the decree of the lower Court may have been, that Court had undoubtedly found (and its judgment was then in full effect and vigor) that 'the excavation of the land and the erection of the nowbutkhana by the defendants were acts of exclusive possession which the Joint Magistrate confirmed. I am bound to say that the defendants were not justified in taking exclusive possession of a specific share of an undivided plot of land, every particle of which belonged to all its owners'. In that way the Subordinate Judge clearly expressed his opinion that the erection of the nowbutkhana was an act of exclusive possession which the defendants were not justified in committing.
12. The judgment under appeal contains several other inaccuracies, one of which is this. The learned Judge says: 'The suit of the plaintiff is dismissed, both as having been brought in a Court which had no jurisdiction to try it, and as having been unnecessarily brought at all, seeing that the matter in dispute was already before a Court of competent jurisdiction in a proper form'. The Judge was not justified in alleging this as a reason for throwing out the plaintiff's suit without satisfying himself how the facts really stood. In point of fact, this plaint bearing date the 20th November was filed on the 4th December, and the suit brought by the defendants for a partition was not filed until the 31st of January, nearly two months after. Therefore, the stigma of the suit having been unnecessarily brought was entirely without foundation. We think the judgment of the lower Appellate Court in this case was entirely erroneous, and must be set aside with costs.
13. I may observe that in the decision of this case the Court below seems to have been in some slight degree influenced by the assertion made there that the nowbutkhana was a structure of a temporary character. It is clear from what has now transpired that it was not of a temporary character. It is still on the land, and seems intended to be a thing either permanent or else of constant recurrence.