1. This appeal arises out; of a suit, which was instituted by the plaintiff, for a declaration that the defendants had no right to erect a permanent structure on the land in suit, for a mandatory injunction directing the demolition of the structure to the extent that it had been erected and for other reliefs. During the pendency of the suit, a temporary injunction was issued against the defendants, restraining them from proceeding with the erection of the structure, but it was eventually withdrawn, it being ordered that the defendants were at liberty to erect the building at their own risk.
2. The land in suit is a part of C.S. dag No. 869, which appertains to a four annas hisya of kismat Babnaparha diha. The kismat lies in four touzis, Nos. 11, 5151, 5152 and 5153. The plaintiff has taken a patni of touzi No. 5151, and has thus acquired a four annas share of the four annas hisya of the kismat. His case was that the defendants are in occupation of the said C.S. dag No. 869 as tenants-at-will.
3. The defendants resisted the claim upon three main grounds: They alleged that they hold a permanent tenancy under the plaintiff and the other co-sharers patnidars in respect of the said C.S. dag No. 869 and also several other plots, and that they had as such tenants erected permanent and semi-permanent structures without any protest from their landlords, which had been in existence from a long time, and that the present structure was but in replacement of an old one. Nextly, they alleged that in 1298 B.S. their predecessors obtained a mirash taluk to the extent of three annas four gandas share from the zamindars of touzi No, 5152, and that C.S. dag No. 869 is one of the plots specifically allotted to them in that share; and also that in 1327 B.S., they obtained a patni settlement of five annas odd share from, the zamindars of touzi Nos. 11 and 5153; and that they are thus cosharers with the plaintiff to the extent of nine annas and odd share. Thirdly, they say that they are settled raiyats in the village and in that capacity too they are entitled; to erect permanent structures.
4. The Courts below have dismissed the suit. Hence this appeal by the plaintiffs.
5. To take, first, the defence of the defendants on the footing of their being co-sharers of the plaintiff. The Courts below have concurrently found that the defendants are in actual possession of far less land than they would be entitled to if the property were partitioned. The appellant has challenged this finding, on the ground that the learned District Judge has given no reasons in support of it, and also on the ground that the trial Court proceeded on the assumption, which is said to be erroneous, that the predecessors of the defendants acquired three annas four gandas share in the entire touzi No. 5152, while the fact is that they acquired such share in only eight pakhis of land. Now the plaintiff's case in the plaint was that C.S. dag No. 869 consists of 1.3 acres, of which the defendants have taken exclusive possession of 68 acres. The Subordinate Judge found that the entire quantity of land in the four touzis is 141.94 acres, of which the defendants are entitled to have 48 acres, and the quantity of land in C.S. dag No. 869 is 1'3 acres, of which the defendants are entitled to 60 acres, and the plaintiff to 26 acres. He also found that the defendants were in fact in possession of only 22 acres in the entire block and that the building in question occupies much less than 60 acres. The dimensions of the building have been proved in the evidence, and from that the learned Subordinate Judge came to the above conclusion. These conclusions were not challenged by the plaintiff in his appeal to the District Judge: not only has the learned District Judge not noticed any such contention in his judgment, but there was even no ground to that effect in the plaintiff's memorandum of appeal to the lower appellate Court. Our attention has been drawn to ground 35, as being one, which was intended to raise this contention, but that ground, in our. opinion, was takes for quite a different purpose. These conclusions are conclusions of fact and we think we are in the circum stances bound by them.
6. The question then arises, whether, taking the conclusions as correct, the plaintiff is entitled to the reliefs that he has asked for. Now, the view of the Allahabad High Court that one of several joint owners of land is not entitled to erect a building upon the joint property without the consent of the other joint owners, notwithstanding that the erection of such building may cause no direct loss to the other joint owners: Najju Khan v. Imtiazuddin  18 All. 115 and Shadi v. Anup Singh  12 All. 436, has been expressly dissented from in this Court in the case of Fazilatunnessa v. Ijaz Hassan  30 Cal. 901, as not being consistent with the line of decisions by this Court. In this Court, it has been 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 the injunction: Shamnugger Jute Factory Co., Ltd. v. Ram Narain Chatterjee  14 Cal. 189. This principle has been consistently recognized in later decisions : Joy Chunder Rukhit v. Bippro Churn Rukhit  14 Cal. 236 and Fazilatunnessa v. Ijaz Hassan  30 Cal. 901. In the case of Watson & Co. v. Ramchund Dutt  18 Cal. 10, their Lordships of the Judicial Committee observed:
In Bengal the Court 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 cosharer 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.
7. Quoting this passage, their Lordships in their later decision in Lachrneswar Singh v. Manowar Hossein  19 Cal. 253, observed that:
the Courts should be very cautious of interfering with the enjoyment of the joint estates as between their co-owners, though they will do so in proper case.
8. In the matter of injunctions there is a considerable distinction between a case in which the other cosharers, 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 a considerable expense, they seek to have it removed : Nocury Lall Chuckerbutty v. Bindabun Chunder Chuckerbutty  8 Cal. 708. In view of the proceedings and order relatlating to the temporary injunction the present case, no doubt, falls within the former category. Even then, unless there is ouster or other substantial injury, no restraint should be put and no injunction should be granted. Sole occupation by itself is not ouster, unless it is attended by an assertion of a hostile title: Basanta Kumari Dassya v. Mohesh Chandra Shaha  18 C.W.N. 328. Here, in the present case, there is no such question of the defendant's sole occupation depriving the plaintiff's enjoyment of an existing actual user of the land, as was the case: Soshi Bhusan Ghose v. Gonesh Chunder Ghose  29 Cal. 500. Nor has the present case any analogy to a case in which, on the eve of or after institution of a suit for partition, a costly building is about to be put up by a cosharer with the evident object of forcing the hands of the Court to allot to his share the land of its site, as was the case in Hemanta Kumar Roy v. Baranagore Jute Factory Co.  19 C.W.N. 442. As regards injury, it is singular that the plaint does not specify any. All that the plaintiff says, in his deposition, is that the land is near the bazar, the hospital and the school, and he desires to remove to the place and erect a homestead there. The advantages referred to cannot be claimed by the plaintiff alone for his own benefit, and, if they are to be taken into account, the defendants have as much right to avail of them as he; and if the defendant have not exceeded the quantity that would fall to their share, on division of the plot, the plaintiff cannot justly complain. Moreover, there is nothing to indicate that the plaintiff, on a partition, would be able to show anything in the nature of a better right to have the portion on which the building has been erected. Nor again are there any materials suggesting that the portion built upon is better in quality than the rest of the lands of the plot. It is true that, when a partition will have to be effected, the present possession of the parties will have to be respected, 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. That, however, is a different matter.
9. As what we have said is sufficient to dispose of the appeal, we do not pronounce any opinion in the other defences of the defendants.
10. The appeal, therefore, is dismissed : but, as the conduct of the defendants has not been too fair and has afforded legitimate ground to the plaintiff to seek the intervention of the Court, our order is that each party will bear his or their oo3ts in this litigation throughout.