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Ram Chand Dutt and ors. Vs. Watson and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal214
AppellantRam Chand Dutt and ors.
RespondentWatson and Co. and anr.
Cases ReferredLloyd v. Bibee Sogra
Excerpt:
co-sharers - ijmali property--cultivation of indigo by one co-sharer without conzent of others--injunction as between co-sharers--practice of the english courts in granting injunction, applicability of. - .....evidence that there are three classes of khas lands in this pergunnah : first, a large quantity of indigo lands which were used for indigo cultivation ; secondly, a large quantity of lands which were mere waste; and thirdly, a large quantity of lands which were neither cultivated with indigo nor mere waste lands, which the tenants of the jote lands paid no rent for, but which they were allowed to cultivate with surguja and other products. presumably, therefore, this was not the very best class of lands. that is how the khas lands were enjoyed, while the 16 annas were in the possession of messrs. watson. when their title to 14 annas came to an end in 1290, what did they do? they went on precisely as they did before, cultivating with indigo the same lands as before, and leaving the other.....
Judgment:

Wilson, J.

1. The next group of questions that arise are, what remedy the plaintiff a are entitled to in this case. In order to ascertain that, it is necessary to determine one question first. Has there happened anything which amounts to an actual ouster as between the plaintiff's and the defendants, their co-sharers? It appears to us that there has. It has been contended that mere cultivation by one co-tenant is not necessarily ouster. It may very well be so. But the question is whether on the facts of this case there has been an ouster. The facts are that, prior to the termination of the year 1290, Messrs. Watson were in possession, under one title or another, of the whole 16 annas of Sildah. While so in possession, they received the rents of the ryoti lands, and they enjoyed the khas lands according to their character. It is clear on the evidence that there are three classes of khas lands in this pergunnah : first, a large quantity of indigo lands which were used for indigo cultivation ; secondly, a large quantity of lands which were mere waste; and thirdly, a large quantity of lands which were neither cultivated with indigo nor mere waste lands, which the tenants of the jote lands paid no rent for, but which they were allowed to cultivate with surguja and other products. Presumably, therefore, this was not the very best class of lands. That is how the khas lands were enjoyed, while the 16 annas were in the possession of Messrs. Watson. When their title to 14 annas came to an end in 1290, what did they do? They went on precisely as they did before, cultivating with indigo the same lands as before, and leaving the other khas lands just as before. They clearly were in sole possession of the whole of the indigo lands. But not only were they so, they were in exclusive possession, in the sense that the plaintiffs were absolutely excluded from them. The plaintiffs servants went and tried to sow some of the lands, and they were excluded by force ; and not only were they excluded in fact, bat the defendants claimed to exclude them as a matter of right, because they set up a title in themselves to do so. They set it up in the Court below, and they insisted upon it in the grounds of appeal. They set up the case that they, as 2 anna share-holders, were entitled to cultivate the indigo lands, and to say to their co-sharers, you are not to interfere with these lands ; you may, if you like, enjoy other khas lands for your shares. It follows, therefore, that on the facts of this case, there was an absolute and completa ouster by Messrs. Watson of their co-sharers from the lands as found by the Court below. It cannot be denied that the plaintiffs are entitled to a decree for ijmali possession of the lands which have been ascertained in the Court below. It is clear also that they are entitled to compensation for exclusion. No question has been raised before us on appeal as to the principle on which compensation has been assessed. Therefore the amount awarded must simply be increased to bring it into correspondence with the 14-annas interests, which we find the plaintiffs are entitled to, instead of the amount which the Court below has given to them.

2. But the real question as to the remedy is, whether or not the injunction which has been granted can be sustained, or, if that injunction cannot be sustained, whether any narrower injunction ought to be granted. Each side in argument before us took rather extreme grounds. It was contended on one side that one co-sharer has an absolute right, as a general rule of law, to say to his co-sharer, 'you shall not cultivate that land in any way without my consent,' and to enforce that right, at least in the absence of any special circumstances, by claiming an injunction in a Court of law. It was contended on the other side that an injunction between co-sharers is a thing which either ought never to be granted, or at any rate only under very unusual circumstances. We are not prepared, as at present advised, and it is not necessary, to agree with either of these propositions.

3. The proposition contended for by the plaintiffs has for its support the language of some learned Judges of this Court in delivering judgment upon cases before them. We think it right only to say this, that we think it may well be open to consideration in a future ease whether the expressions used in some of those oases, if taken as unqualified propositions of law and without regard to the context, are wholly correct.

4. With regard to the extreme proposition on the other side, it is based upon the construction which the learned Counsel placed upon English decisions. But, though, of course, the principles on which English Courts administer the remedy by injunction must betaken to be those which the Legislature meant to affirm in the Specific Relief Act, still the circumstances of this country are very different from those of England ; and it would be a dangerous thing to assume that, because the Courts in England have very rarely found it necessary to grant an injunction as between co-sharers in order to prevent multiplicity of suits, or upon any other grounds, Courts in this country may not properly be somewhat less rigid in doing so. The circumstances of the country are different; the positions of co-sharers and persons with partial interests in land are very different from those in England ; and the interests of part owners may here require protection by injunction in classes of cases in which it is not necessary to grant it in England. There is a large number of cases which go to show that the remedy by injunction may in this country be given in cases between co-sharers, when the circumstances of the cases are such as to render it necessary in order to secure those objects which, according to the law, should be secured by injunction. Particularly, since the passing of the Specific Relief Act, an injunction may properly be granted, if, on a consideration of the facts of the case, the Court thinks that that remedy is necessary in order to prevent repetition of injury and multiplicity of suits.

5. In the present case we are to consider what injunction ought to be granted if any The injunction asked for was two-fold : first, an injunction against growing indigo; and, secondly, an injunction against doing anything which should exclude the plaintiffs from their right to ijmali enjoyment of their shares in the lands The injunction which has been granted corresponds with the first part of the prayer. It is not necessary in this case to decide whether there could in any case properly be an injunction, a simple and unqualified injunction, against the growing of indigo by one co-sharer of land. It is unnecessary to consider that question, because there are circumstances in this case which would lead us to say that at any rate any such injunction ought not to be granted in this case. There is the circumstance, first, that the defendants, Messrs. Watson, are owners of indigo factories as well as Occupiers of these indigo lands, and those factories have been built under arrangements with the same persons from whom the parties to this suit all derive their title, and the interests which they have in mouzah Sildah have been expressly given them for the purposes of working their factories and growing indigo. Not only is that the case, but the lands now in question appear, on the evidence, to have been waste lands and brought under cultivation by Messrs. Watson as indigo lands. They have not been used in any other way. Under those circumstances we think we ought not to issue an injunction restraining them absolutely from growing indigo upon these or upon any particular lands, provided Messrs. Watson can and it is for them to find out how they can grow indigo without excluding the plaintiffs from their equal rights as co-sharers. But we think that a narrower injunction under the circumstances of the case ought to be granted. This is a case in which there has been a continued wrong and a wrong which the defendants have attempted to justify. A continuance of that wrong and a multiplicity of suits seem to us not only highly probable, but almost certain, if we were simply to set aside the injunction. We think the Droper course will be to vary the injunction so as to make it accord with that given in so many cases in this Court, by making it an injunction restraining the defendants from excluding by any means the plaintiffs from their enjoyment of ijmali possession of the lands in suit. The injunction will be in the form given in Lloyd v. Bibee Sogra 25 W.R. 313.


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