1. These are two appeals arising out of the same judgment.
2. The plaintiff No. 1 and the defendants Nos. 1 and 2 are co-sharers and ijmali maliks of a certain bazar called Bhola Chong Bazar. The other plaintiffs are the lessees from the plaintiff No. 1. The western portion of this bazar is known by the name of Chandina Bazar and in this latter there are tin sheds belonging to the shopkeepers. The plaintiff No. 1 and the defendants also have godowns in this western portion. The eastern portion is said to be an open space, where, it is alleged, temporary stalls are put up and boats are moved during the rainy season. In the east of this open space is a khal running north and south. The plaintiffs allege that the defendants have taken earth from the western slope of this khal and that they have raised certain spaces to the east of their permanent shops; and hence the plaintiffs claimed an injunction on the defendants and prayed for an order directing the defendants to restore the plots to their original condition. They also claimed joint possession.
3. The first Court decreed the claim against the defendant Gopi Mohan on the ground of his having no right to take exclusive possession of any portion of this open space, but it dismissed the case against the other defendant, namely, Anand Mohan, on the ground of his having been already in exclusive possession of the space of the east of his shop.
4. On appeal to the Subordinate Judge by the plaintiff and Gopi Mohan, one of the defendants, that learned Officer dismissed the appeal preferred by the plaintiff and decreed the appeal preferred by the above-named defendant. In the result the whole case of the plaintiffs was dismissed.
5. The plaintiffs now appeal to this Court; and the ground urged by the learned pleader on their behalf is that the spaces taken exclusive possession of by the defendants, being admittedly portion of the joint lands of the plaintiffs, the lower appellate Court was wrong in holding that the mere fact that the defendant No. 1 spent Rs. 500 in bringing about the change complained of was enough to entitle them to exclusive possession of this portion. In support of the above contention, our attention has been invited to the case of Watson and Co., v. Ram Chund Dutt 18 C. 10 : 17 I.A. 110 a and Dilber Sardar v. Hossein Ali Bepari 26 C. 553. It seems to me that the sum and substance of their Lordships' ruling in the first mentioned case are contained about the end of the decision, which is to the following effect: 'In Bengal the Courts 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 share-holders holding lands in common, it should be found that one share-holder 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 share-holder to appropriate to himself the fruits of the other's labour or capital.'
6. In the other cited case, it was held that when a 2 anna sharer in the taluk had, without the consent of his co-sharers, expelled one of the common tenants of the talukdars and possessed himself, to the exclusion of his co-sharers, of the lands held by him, there could not be any consideration of an equitable kind. It is apparent, therefore, that in such cases the decision should be in accordance with justice, equity and good conscience. In the case of Sreemutty Atarjan Bibee v. Sheikh Ashak 4 C.W.N. 788, it was held that where in an ijmali land one co-sharer excavates a tank and there is no proof of any injury caused thereby to the property, the other co-sharer has no right to have the tank filled up and the land restored to its former condition, but he is entitled to a declaration of title to the extent of his share. In the light of the above decisions, let us see what the findings of the lower appellate Court are in this connection. Those findings are that it was not satisfactorily shown by the plaintiffs that any injury was caused by the defendants to the lands in question; that the exclusive possession of the lands in question might prove advantageous to the bazar; and that the conduct of the defendants in taking earth from the slope of the Khal shows that they have no desire to do any act calculated to be injurious in any way to the plaintiffs or to the market. Such being the findings of the lower appellate Court, I do not think that in second appeal this Court can disturb those findings. And the more so when we find that under the circumstances the injury to the defendant in case of injunction would be greater as found by the lower appellate Court and also more serious than the injury to the plaintiff by the injunction not being granted. In this connection see the cases of The Shamnugger Jute Factory v. Ram Narain Chatterjee 14 C. 189 and Joy Chunder Rukhit v. Bipro Churn Rukhit 14 C 236.
7. In the face of the above findings, I am of opinion that this appeal should be dismissed with costs.
8. This decision will also govern appeal No. 1881 of 1908.
9. The facts which gave rise to this case are shortly these: The plaintiff No. 1 and the defendants Nos. 1 and 2 are co-sharers of a certain zemindary, in which is situate a bazar, called Bhola Chong bazar. The western portion of this bazar called Chandina bazar and there are in it many go-downs and tin sheds. Most of these tin sheds belong to shopkeepers; but the three co-sharer maliks have also three godowns of their own therein. In the eastern portion of this bazar, the spaces are occupied by temporary stalls. The defendants have taken exclusive possession of a space, measuring 20 cubits by 15 cubits, in the eastern portion this bazar, by taking earth from the slope of the adjoining khal and thereby raising the level and erecting a tin shed over it. In these circumstances the plaintiff No. 1 and her co-plaintiffs, who are her lessees, have brought the present action for a mandatory injunction to compel the defendants to restore the land to its former condition. In the case of Luchimesswar Singh v. Manowar Hossein 19 C. 253 19 I.A. 48, their Lordships of the Privy Council, after quoting a passage from their previous judgment in the case of Watson and Co. v. Ram Chand Dutt 18 C. 10 : 17 I.A. 110 observed, that 'the Courts should be very cautious of interfering with the enjoyment of joint estates as between their co-owners, though they will do so in proper cases.'
10. Now, in the present case, the lower appellate Court has found that by reason of the exclusive occupation by the defendants of this small piece of land, the plaintiff has sustained no substantial injury such as would justify the Court in putting the defendants to the expense of demolishing the tin sheds, and, in the second place, the lower appellate Court has found that the nature of the occupation is such that it may ultimately prove to be an improvement to the bazar. These findings are unassailable, and, in my opinion, they form sufficient grounds for not disturbing the present enjoyment of the co-sharers.
11. The appeals must, therefore, be dismissed with costs.