1. This appeal is preferred by the defendants, and judgment has been delayed because after arguments had been addressed to us, the learned Vakils thought that they might be able to arrange a compromise.
2. The defendants have a shop in Belanganj Barar with a kachha floor and a roof of corrugated tin, and they have began to erect a pucca building instead, The plaintiffs are some of their landlords with an interest of 4 1/2 annas, and they want an injunction restraining the defendants from erecting a masonry structure.
3. The principal issues on the pleadings were:
4. Whether the defendants have acquired a premanent right of tenancy in the disputed lands?
5. Are the defendants entitled to construct ary pucca structure on the disputed land by usage or otherwise?
4. The defendants assert that they have what they call a Chandiana right, and that this right is permanent, heritable and transferable. The Courts below have both found that this right has not been proved.
5. On behalf of the defendants three arguments were advanced. The first is that as the plaintiffs are only owners of a portion of superior interest, they are not entitled to ask for an injunction in the absence of their co-owners. No authority has been advanced for this proposition, and it is difficult to see on what principle one of several co owners should be denied relief, if he can make out a case for an injunction.
6. The second argument is that the erection of pucca buildings is not waste, and that, therefore, no injunction should be granted. The plaintiffs have never suggested that such a building would cause waste; what they say is that it is an assertion of a permanent right in the defendants, and on that account they must interfere, If the plaintiffs allowed the defendants to build without protest, and after the building was complete tried to eject the defendants as mere tenants-at-will, it is certain that they would be met by pleas of waiver and acquiescence. If, therefore, the defendats are allowed to go on with the building, the plaintiffs' right as landlords will be jeopardised, and on that account they have a right to seek an injunction.
7. The third argument is that the case is one in which pecuinary compensation can be given for the invasion of the plaintiffs' rights. That is obvious and it was in the hope that the parties would agree upon a sum to be paid to the plaintiffs that we deferred our decision. The parties, however, did not ask the lower Court to deal with this aspect of the matter, with the result that there is no evidence on the record upon which an estimate may be founded. It is too late now for the defendants to ask for a remand. They chose to fight the suit on the ground that they bad a permanent right and that they were at liberty to build such structures as they pleased, and now that they have failed they cannot ask for the scope of the suit to be enlarged, and a fresh enquiry started.