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Ashutosh Roy Vs. Chairman of the Commissioners, Rampore Boolia Municipality - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1925Cal1027,85Ind.Cas.796
AppellantAshutosh Roy
RespondentChairman of the Commissioners, Rampore Boolia Municipality
Cases ReferredDebendra Narayan Singh v. Narendra Narayan Singh
- .....arises for decision in this second appeal relates to the rights of tenants-in-common, who are in joint possession of a certain piece of land, as to the mode of enjoyment of such joint rights.3. the facts which gave raise to the litigation between the parties shortly stated are these :-that a tank called bakultala tank within the municipal limits of rampur boalia municipality belonged in equal shares to the father of the plaintiff and the father of the pro forma defendant. the municipality finding that the tank was insanitary, after serving the necessary notices took possession of the tank and filled it up with earth at their own costs and it is not disputed that the municipality was entitled to retain possession of the filled up site under the provisions of section 200 (2) of the.....

Chakravarti, J.

1. This is an appeal by the plaintiff against the Chairman of the Commissioners of the Rampur Boalia Municipality as the principal defendant in a suit for an injunction against the defendant.

2. The question which arises for decision in this second appeal relates to the rights of tenants-in-common, who are in joint possession of a certain piece of land, as to the mode of enjoyment of such joint rights.

3. The facts which gave raise to the litigation between the parties shortly stated are these :-That a tank called Bakultala tank within the Municipal limits of Rampur Boalia Municipality belonged in equal shares to the father of the plaintiff and the father of the pro forma defendant. The Municipality finding that the tank was insanitary, after serving the necessary notices took possession of the tank and filled it up with earth at their own costs and it is not disputed that the Municipality was entitled to retain possession of the filled up site under the provisions of Section 200 (2) of the Bengal Municipal Act, after it was filled up in or about the year 1912. The owners were called upon to pay the costs of filling up the tank and take its possession back. The plaintiff paid his half share of the costs and with the consent of the Municipality in 1916 took joint possession of the site which measures about 5 cottahs in all. It is also not disputed that since then both the plaintiff and the Municipality were in joint possession of the re-claimed land, although the plaintiff alleged that he was in sole occupation of it. In fact the site was left vacant and nobody exercised any visible act of occupation or user but it was in evidence that the Municipality kept the place clear of jungles and shrubs although the plaintiff also claimed to have cleared the jungles on the lands and made exclusive user of some sort. The Munsif, however, found, to quote his own words,' thus eventually the plaintiff and principal defendants are in the position of co-sharers in joint possession of the disputed land which was, in fact, patit land, without any special or particular act of possession by any side in the same all these three years before suit, and the law of joint owners will apply in a case like this.' This view of the Munsif has been accepted by the Subordinate Judge also.

4. The Municipality conceived the idea of constructing houses for the accommodation of their sweepers on about 1 3/4 cottahs of this site and when preparation for building the huts were being made 'All the people of locality headed by Hari Nath Sen' protested against the action of the Municipality and the plaintiff opposed the intended user of joint land for accommodation of methors as a nuisance to the neighbourhood and also on the ground that the site was close to his Kalibari.

5. The Municipality, however, decided to proceed with the work and before any work had been actually done, the present suit was instituted on the 25th September 1918 for a declaration of the plaintiff's right and for a permanent injunction restraining the Municipality from erecting the proposed huts and latrines for the accommodation of Municipal sweepers and methors. An ad interim injunction was issued but was dissolved on the objection of the defendants, the Municipality. The houses and the latrines were constructed by the Municipality during the pendency of the suit.

6. The learned Munsif found plaintiff's title and possession as I have stated before but disallowed the main prayer but granted an injunction for the removal of the latrine and made no order as to costs.

7. On appeal by the plaintiff, the Subordinate Judge dismissed the appeal with costs.

8. I shall first endeavour to state some of the principles which are necessary to consider for the determination of the question which arises in this case, namely, were the Municipality justified in building the houses on land which was in joint possession, in spite of the protest of their co-owner the plaintiff and if not, is the plaintiff entitled to the mandatory injunction prayed for.

9. In the case of Dijendra Narain Roy v. Purnendu Narain Roy [1910] 11 C.L.J. 189 following the case of Ananda Chandra v. Parbati Nath [1906] 4 C.L.J. 198, Mr. Justice Mookerjee laid down the rule as follows:

Each co-owner is in theory interested in every infinitesimal portion of the subject-matter and each has the right irrespective of the quantity of interest, to be in possession of every part and parcel of the property jointly with the others.

10. In the case of Lokenath Singh v. Dhwarkeshwar Prasad Narain Singh [1915] 21 C.L.J. 253, it was laid down that ' Every co-tenant has the right to enter into and occupy the common property and every part thereof, provided that in so doing he does not exclude his follow tenants or otherwise deny to them some right to which they are entitled as co-tenants.

11. In the case of Israil v. Samset Rahman [1913] 41 Cal. 436, it was laid down: If a co-owner with the tacit consent of his co-sharer, is in the solo occupation of a portion of joint property, he is not entitled to change the nature of that possession or to use the property in a mode different from that in which it had previously been used.'

12. From the principles I have just quoted it follows that one co-sharer has no justification to change without the consent of his co-tenant, the state of the possession as enjoyed by the co-tenants. According to the findings of the Courts plaintiff and the defendants were in joint possession of these 5 Cottas of land and the moment the Municipality attempted to take this land into their exclusive occupation the plaintiff protested. When the Municipality in disregard of this protest persisted in their determination the present suit was instituted. I do not see why the plaintiff should not be restored to his original position. There was no acquiescence here nor is there any equitable consideration which would justify the Court to refuse to give the plaintiff his just right.

13. The Courts below seem to think that the objections of the plaintiff were not reasonable. Is the plaintiff bound to justify the validity of his objections or to suit the convenience of his co-tenant? It was not his business. In the circumstances of this case, it appears to me that the objections of the plaintiff were not merely fanciful. He bad a right to insist that his own property should not be put to a use which was repugnant to his feelings, and in fact the whole neighbourhood objected to the erection of those houses. In case a co-sharer is unreasonable and obstructs his co-tenant in making beneficial use of the joint property, the remedy of the tenant in common is to seek partition and not to take forcible possession of the joint property to the exclusion of his co-sharers.

14. It has been argued by the learned vakil for the respondent on the authority of the case of Watson & Co. v. Ram Chand Dutt [1891] 18 Cal. 10, that here as in that case joint possession should cot be awarded to the plaintiff. I do not think that this case will help the defendants. It is one of those cases which lie just near the border line and that is the reason why both the District Judge and the High Court gave decrees enforcing the claim of the plaintiffs in that case as to the 14 annas of the property to which the Watsons had no title. If the facts are closely examined it would appear that the strict rights of the plaintiffs were modified on two main grounds. It appears that the Watsons were in possession of the entire land until the 14th of September 1893 when the leases of the 14 annas-share to the Watsons under the Dutts expired and after that the Watsons 'continued in possession and to cultivate and sow it with indigo as they had done during the continuance of the leases.' (See page 118.)

15. Here, therefore, there was no change made by the Watsons in the nature of the existing possession; all that they did was to refuse to allow the Dutts to come in and to take joint possession to the extent of their share. Therefore this case does not fall within the rule 'that a co-sharer is not entitled to change the nature of existing state of things.'

16. In the present case, joint possession of the parties was disturbed by the Municipality and that in spite of the protest of the plaintiff. There can be no justification for such a highhanded proceeding.

17. Then their Lordships pointed out it would be against public policy in Bengal to allow a large tract of valuable land to lie uncultivated 'until all the share-holders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected a work which in ordinary course in a large estate would probably occupy a period including many seasons,' etc. After expressing themselves in the language quoted above their Lordships say: 'In Bengal the Courts of Justice, in cases when no specific rule exists, are to act according to justice, equity and good conscience and if, in a ease 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 be scarcely consistent with the rule above indicated to restrain him.'

18. Therein is the key to the judgment of their Lordships.

19. In the present case there are no grounds on which it can be said that the plaintiff has lost his undoubted rights to insist upon the continuation of the existing state of the possession of the common lands.

20. It was next urged by the learned vakil for the respondent that there was no ouster of the plaintiff because the Municipality did not deny the title of the plaintiff.

21. It was held in the case of Debendra Narayan Singh v. Narendra Narayan Singh (1919) 23 29 C.L.J. 504. C.W.N. 900 that 'when there is an actual turning out or keeping out of possession there is an ouster.' This is what has happened in the present ease.

22. It was lastly urged on behalf of the respondent that remedy by an injunction is a discretionary matter and this Court should not interfere with the decree of the Courts below. Injunction was granted in this case but it was limited to the latrines. It seems that the Courts below thought in the present case that the plaintiff was seeking an injunction on the ground of actionable nuisance forgetting that the case was based on the ground of infringement of the rights of a co-owner by another co-owner. The plaintiff's remedy should not have been limited but should have included the whole subject-matters of the suit. The discretion of the Court must be exercised on recognised principles and should not be arbitrary. Where the circumstances of a case demand it the High Court has frequently interfered with the orders of the lower Courts if they were inconsistent with sound principles.

23. The defendants cannot complain if they are now compelled to restore the property to its original condition by the removal of the huts built on the land which they Persisted in building in spite of the institution of the suit.

24. In the result the judgments and decrees of the lower Courts are modified and the suit of the plaintiff is decreed in full and the defendants are directed to remove all the buildings and restore the land to its original condition. The plaintiff will get his costs in all Courts. We direct that the building should be removed within two months from this date and in default the plaintiff will be entitled to get them removed in execution of the decree.

Greaves, J.

25. I agree.

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