1. The substantial question of law which has been argued in this appeal, relates to the right of one co-tenant of joint property to maintain an action for ejectment against his co-sharers. The events which have given rise to the litigation between the present parties are not disputed. The plaintiff and the principal defendants are stepbrothers. Their father died on the 22nd August 1891. They separated in August 1895 and by deeds executed on the 4th May 1896 and 28th August 1896 a partition was effected of a considerable portion of their joint estate. Two houses, however, known as the Chandimandap and the Jagdhatribati were left joint. The plaintiff, from the date of the partition, along with his brother, the pro forma defendant, has performed the pooja ceremonies in the latter building. The principal defendants performed their worship in the former building. In 1897 the building of the Chandimandap was practically destroyed as the result of a severe earthquake. The defendants thereupon erected temporary sheds in which they carried on their worship. The plaintiff and his uterine brother remained in possession of the Jagadhatribati and continued to perform their worship in that building. In May 1901 the defendants began to re-build the Chandimandap. The plaintiff thereupon gave them notice on the 21st August 1901 and asked them to desist. Considerable progress, however, had been made meanwhile and the new building was completed shortly after. On the 81st May 1905 the plaintiff commenced this action for declaration of his title to the property, for recovery of joint possession and for a mandatory injunction to compel the defendants to demolish the building they had erected. The defendants resisted the claim substantially on the grounds that they had acted within the scope of their rights as joint owners, that they had taken possession of the land under an express agreement with the plaintiff, that the latter was estopped by his conduct from seeking the demolition of the building in the erection of which he had acquiesced and that the plaintiff was entitled neither to a decree for joint possession nor to a mandatory injunction, in asmuch as the act of the defendants did not amount to an ouster.
2. The Courts below have made a decree in favour of the plaintiff by which his title as joint owner of the property is declared but they have refused him any relief by way of injunction or joint possession. The Subordinate Judge has affirmed the finding of the Court of first instance that there has been no acquiescence on the part of the plaintiff and further that there has been nothing in his conduct which could estop him from enforcing his rights. Both the Courts, however, have held that the acts of the defendant are perfectly legitimate and do not constitute an ouster of the plaintiff. The plaintiff has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed substantially on two grounds; namely, first, that, as one of the several joint owners, the appellant is entitled as a matter of right to a decree for a joint possession, as according to the facts found by the Court below, the defences of estoppel and acquiescence have both failed; secondly, that the sole occupation, as in the present case, by some of the co-owners of one portion of joint property without proof of an agreement in that behalf with the other co-sharers, constitutes an ouster such as entitles the plaintiff to maintain an action of ejectment.
3. In support of the first contention, it has been argued that whatever equitable considerations may be applicable if one co-tenant asks for an injunction against another, there is no room for the application of such principles to an action in ejectment. In view of this argument the learned Vakil for the appellant has intimated to the Court that he does not desire to press the claim for an injunction. In essence, therefore, the appellant invites us to recognise as applicable to the Courts of this country the distinction between a common law action of ejectment and an equity suit for an injunction. The position is sought to be supported by the decision in Doe v. Horn 3 M. & W. 333, in which Baron Parke followed the rule laid down by Littleton (Section 322) 'that if one tenant-in-common occupy the whole and put the other out of possession and occupation he who is put out of occupation shall have against the other a writ of ejectione firmae of the moiety.' Reliance is also placed upon the Commentary of Lord Coke on this passage to the effect that 'if he drive out of the land any of the cattle of the other tenant-in-common, or do not suffer them to enter or occupy the land, this is an ejectment or expulsion, wherefore he may have an ejectment for the moiety.' After a careful consideration of the argument which, has been addressed to us, we are unable to hold that we ought to recognise in this country the distinction between a Common Law action of ejectment and an equity suit for an. injunction. The history of the litigation, to which reference has just been made, illustrates the dangers likely to result from the recognition of such a distinction. In that case a Railway Company obtained a lease of 5/6ths share of a certain property from some of the joint owners. The other joint owner who owned the remainder brought an action of ejectment to recover possession, but was defeated by an outstanding term set up by the Company. In this preliminary stage the case is reported as Doe V. Horn 3 M. & W. 333. The joint owner thus defeated, brought a fresh ejectment having first determined by a notice to quit the outstanding tenancy. He was successful and got a decree for possession. In this second stage, the case is reported as Doe v. Horn (1839) 5 M. & W. 564. The Railway Company now filed a bill in Chancery and prayed for an injunction to restrain the defendant from executing the writ of possession issued at his instance. An ad interim injunction was issued, but it was ultimately dissolved on the ground that the Company had acted in defiance of the legal rights of the owner, and their conduct was such as disentitled them to any relief in a Court of equity. In this final stage the case is reported as Durham and Sunderland Railway Co. v. Wawn (1840) 3 Beav. 119 : 4 Jurist 764 : 52 R.R. 56. If there had been no distinction between a Court of Common Law and a Court of Equity, it is manifest that the matter in controversy between the parties might have been finally decided in the earlier litigation. The Courts of this country are, in all matters for which no specific rule may exist, directed to act according to the justice, equity and good conscience (Reg. III of 1793, Section 21 subsequently repealed but substantially re-enacted in Act VI of 1871, Section 24 and Act XII of 1887, Section 37). There is no reason, therefore, why the Courts should allow a litigant in the position of the plaintiff to obtain a decree for ejectment as a matter of right and drive the defendants to obtain an injunction granted on equitable considerations. It is worthy of note that the distinction which we have been pressed to recognise has been uniformly ignored in numerous judicial decisions on the subject to be found in out-reports. For instance, in the cases of Gokool Kishen Sen v. Ishur Chunder Roy 18 W.R. 12, Mohima Chunder Ghose v. Madhub Chunder Nag 24 W.R. 80, Madan Mohun Shaha v. Rajab Ali 28 C. 223, Syed Ali v. Najab Ali 11 C.W.N. 143, Ananda Chandra Sen v. Parbati Nath Sen 4 C.L.J. 198, Ram Sankar Bhaduri v. Jnanoda Sundari 5 C.L.J. 267, Amba Debya v. Jnanoda Sundari 4 C.L.J. 254, Gobind Chunder Ghose v. Ram Coomar Dey 24 W.R. 393, Lloyed v. Musammat Bibi Sogra 25 W.R. 313, which were all suits for ejectment by one joint owner against another. The same equitable doctrines were applied as in the cases of Bissumbar v. Rajaram 3 B.L.R. App. 67 : 13 W.R. 337; L.J. Crowdy v. Inder Roy 18 W.R. 408; Nocury Lall Chuckerbutty v. Brindabun Chunder Chuckerbutty 8 C. 708; Joy Chunder Rukhit v. Bippro Churn Rukhit 14 C. 236; Sham Nugger Jute Factory Co. Ltd. v. Ram Narain Chatterjee 14 C. 189, Fazilatunnissa v. Ijaz Hassain 30 C. 901; Sreemutty Atarjan v. Sheikh Ashak 4 C.W.N. 788; Anant Ramrau v. Gopal Balvant 19 B. 269; Mohan Chand Nemchand Gujar v. Isak Bhai Tanaji 25 B. 248; Paras Ram v. Sherjit 9 A. 661 and Shadi v. Anup Singh 12 A. 436, which were all cases in which one co-sharer sought either a permanent injunction to restrain another co-sharer from dealing with the joint property in a particular manner or a mandatory injunction to compel him to demolish buildings erected by him or to restore the land from its altered to its original condition. It may further be observed that the case of Watson & Co. v. Ram Chund Dutt 17 I.A. 110 : 18 C. 10 was one for injunction as well as joint possession, whereas the case of Lachmeswar Singh v. Manowar Hossein 19 I.A. 48 : 19 C. 253 was by one co-sharer against another for account of the profits of joint property. In both cases, however, the same test was applied to determine the rights of the joint owners; that test is, whether the defendant has made use of the joint property in a way consistent with the continuance of the joint ownership and possession. In view of the principles uniformly adopted in the long series of decisions to which we have referred, it is impossible for us to adopt the distinction suggested by the appellant. We are further convinced that apart from authorities there are ample reasons why that distinction ought not to be recognised as it would inevitably lead to a multiplicity of suits. The first ground, upon which the appellant seeks to assail the decisions of the Court below, must consequently be overruled.
4. In support of the second contention, it has been argued that the act of the defendants amounts to ouster of the plaintiff and entitles him to maintain and action of ejectment. It has not been disputed that since the possession of one joint tenant-or-tenant in common is the possession of all and all are equally entitled to the use and enjoyment of the property, one tenant cannot maintain an action against his co-tenant in respect of the common property unless he has been disseized or ousted there from, or unless the property has been actually converted or destroyed. The only question in controversy is, whether the act of the defendants constitutes ouster within the meaning of this rule. It is perfectly true that the ouster need not be accompained by positive force, and that whether the exclusion of one co-tenant constitutes ouster must depend upon the circumstances of each individual case. It has been argued by the learned Vakil for the appellant that there are two circumstances which support the view that there has been an ouster of the plaintiff, namely, first, the sole occupation of the land of the Chandimandap by the defedants and secondly, the erection by them of a substantial building on that land without the assent of the plaintiff. In support of the view that the first of these elements is sufficient to constitute ouster, reliance has been placed upon passages from Freeman on Co-tenancy and Partitions, Sections 228and 236.In the first of these passages, the learned author refers to the decision in Carpentier v. Webter 6 Allen 18, and observes that an exclusive possession of a part of a common estate is to the extent of land embraced by it as inconsistent with the common title as the occupation of the whole would be. In the second passage, reference is made to the decision in Roberts v. Moore (1828) 8 B. & C. 257 : 32 R.R. 374 in support of the proposition that a refusal by one in possession to let his co-tenant come in or to participate in the enjoyment of the common profits is equivalent to turning him out. It is clear, however, from an examination of the cases relied upon that they do not lay down any rule of universal application. They recognise the doctrine that whether any given act will amount to an ouster or not, must depend upon, whether the act is or is not consistent with the common title: that is, consistent with the common right to occupy and enjoy, and the answer to this question must depend upon the various circumstances of the case. The proposition that the sole occupation of a portion of joint property by one co-owner necessarily constitutes an ouster of the other co-tenant is neither well-founded in principle nor sustained by the authorities. Joint property, in order that it may be jointly enjoyed, must be used simultaneously in different parts by different co-owners or successively in time in its entirety by the various owners. It is inconceivable that the same piece of land can be simultaneously occupied and enjoyed, in its entirety by two persons the so-called joint user of property necessarily implies a division in or a succession in time or an employmet of a common agent. From this point of view, sole occupation of a part of the common estate by one co-owner does not inevitably imply an ouster of the other co-owners. This view is supported by the cases of Watson & Co. v. Ram Chand Dutt 17 I.A. 110 : 18 C. 10; Mohesh Narain v. Nowbat Pathak 32 C. 837 : 1 C.L.J. 437; Ananda Chandra v. Parbati Nath 4 C.L.J. 198. In the last of these cases, it was ruled that although in the case of immovable property jointly owned, each co-owner is in theory interested in every infinitesimal portion of the subject-matter and each has the right, irrespective of the quality of his interest, to be in possession of every part and parcel of the property jointly with the others, yet it does not follow that one joint owner is entitled to maintain an action in ejectment against co-owner merely on the ground that the latter is in sole occupation of a portion of the joint property. Such sole occupation may under certain circumstances be perfectly ligitimate and may not constitute an invasion of the rights of the co-sharer. We are unable, therefore, to hold that the element of sole occupation by the defendants upon which stress is laid by the appellant is sufficient in itself to justify the inference that there has been an ouster of the plaintiff. The second element, which we are invited to regard as conclusive evidence of ouster, is the erection of a substantial building on the land without the assent of the plaintiff. In support of this proposition reliance has been placed upon a passage from Freeman on Co-tenancy, Section 240, in which the learned author refers to the decision in Benett v. Clemence 6 Allen 18, as authority for the dictum that such an exclusive appropriation by one co-tenant of a part of the land to his own use as arises from the erection of a permanent structure is evidence of an ouster. In the same section, however, it is pointed out that the erection of a permanent structure cannot be invariably treated as conclusive evidence of ouster. This latter view was adopted by this Court in Ananda Chundra v. Parbati Nath 4 C.L.J. 198, in which it was ruled that sole occupation by one co-owner of a part of the joint land to his own use by the erection of a permanent structure is not necessarily evidence of an ouster. It may well be that the lands cannot be enjoyed as each of the joint owners is entitled to enjoy them without making extensive and permanent improvements. The test to be applied is, whether the plaintiff, who complains of the act of his co-owner, has sustained some substantial injury by reason of the act of which he complains. Precisely, the same view was adopted in the case of Cubitt v. Porter (1828) 8 B. & C. 257 : 32 R.R. 374, which was treated as authoritative by Jessel M.R. in Standard Bank v. Stokes (1878) 9 Ch. D. 68 : 47 L.J. Ch. 554 : 83 L.T. 172 : 26 W.R. 492, and by Jenkins, C.J. in Mohun Chand v. Isak Bhai 25 B. 248. In this case, a joint 'wall was pulled down by one of two tenants-in-common and a new wall was built of a greater height than the old one. It was ruled that this did not entitle one of the two tenants-in-common to maintain trespass against the other. If the right, of one joint owner to effect an improvement upon the joint property was denied, the result would be that the co-tenant willing to undertake the expense of such improvements would be compelled to desist from making them and required to leave his lands in a condition in which he cannot use them advantageously to himself. As observed in the case of Hart v. Gregg (1840) 10 Watts 185 : 36 Am. Dec. 166, entry by one co-parcener cannot become adverse without some unequivocal act amounting to an actual disseizin or ouster of the other co-tenants and the mere erection of buildings adopted to the legitimate use of the land does not amount to such disseizin. A co-tenant, who has thus spent money, is not entitled, as pointed out in Leigh v. Dickeson (1884) 15 Q.B.D. 60 : 54 L.J.Q.B. 18 : 52 L.T. 90 : 33 W.R. 538 and Brickwood v. Young (1905) 2 Com. L.R. 387, to call upon his co-sharers to compensate him for the expenditure, but he has a defensive equity which attaches to the land and passes to a purchaser, which is enforcible in the event of a partition or a distribution amongst the tenants in common of the proceeds of sale of the land. In view of these principles, we are unable to give effect to the contention of the appellant that the mere circumstance that the defendants have erected a substantial structure on the land is conclusive evidence of the ouster of the plaintiff.
5. Tested in the light of these principles, the conclusion is irresistible that the plaintiff has no substantial grievance. According to the statement made before us at the Bar, it is indisputable that even after the separation between the two branches of the family in 1896, they continued to carry on the worship jointly on Chandimandap. This was done apparently for one year, for as soon as in the following year, 1897, the old building of the Chandimandap was destroyed by an earthquake, the plaintiff occupied the Jagadhatribati which was still joint property and began to perform his worship there. The defendants were thus left in sole occupation of the land of the Chandimandap on which they erected temporary sheds where the worship was carried on by them during the years 1897 to 1901. The temporary sheds, however, proved very inconvenient, and in 1901 the defendants re-built the house at a cost of of Rs. 4,000. The plaintiff in the Court below professed his inability to bear the expenses of construction, but he is anxious either to have the house domolished or to have it jointly occupied. It is obvious that there is no ground for demolition of the house and this part of the claim has been abandoned before us. It is equally clear that a decree for joint possession, which would render necessary for the performance of the pujahs of both branches of the family (which must be performed simultaneously on stated auspicious days) in the same building, might lead to serious dispute and trouble. We feel no doubt whatever that we ought not to disturb the existing condition of things, under which each party performs the worship in a separate house. If the plaintiff has any real grievance, his remedy lies obviously in a suit for partition. The second ground urged on behalf of the appellant cannot Consequently be supported.
6. The result, therefore, is that the decree made by the Courts below must be affirmed and this appeal must be dismissed with costs.