JUDGMENT T.S. Misra, J.
1. This is a defendant's appeal arising out of a suit for joint possession over the land shown by letters A B E H C D and for permanent injunction to restrain him from interfering with the plaintiff's possession over the land shown by letters U X Y Z in the map of the Commissioner dated 12-8-1960. The defendant is the brother of the plaintiff. It was alleged by the plaintiff that the parties to the suit were living jointly in the house which existed on plot No. 408, the main door of which is towards the north. He further alleged that in. February, 1960, the eastern wall as well a portion of the western wall of the Hats were got demolished by the defendant and with a view to make further constructions the defendant got dug the foundation. The plaintiff stated in the plaint that if the constructions were allowed to be made his passage for ingress and egress would be blocked. He also alleged that by the action of digging the foundation the defendant had interfered with the joint possession of the plaintiff over the property in question.
2. The defendant-appellant contested the suit on a variety of grounds. He alleged that a partition between him and the plaintiff had taken place long ago and the parties were in possession of their respective portions of the property in question. He also alleged that he intended to make constructions in the portion which was in his ownership and possession and the plaintiff would in no way be affected by the same. The trial Court dismissed the suit. On appeal by the plaintiff the decree passed by the trial Court was reversed and the suit was decreed.
3. Aggrieved, the defendant has now come up to this Court in second appeal.
4. The learned counsel for the defendant-appellant urged that both the courts below had recorded a concurrent finding of fact that no partition between the plaintiff and the defendant had taken place. Both the parties were, therefore, co-owners of the said property. The defendant being a co-owner and having made some constructions on the land jointly owned by the parties, would not be liable to be dispossessed therefrom. The learned counsel for the respondent, however, urged that a co-sharer is not entitled to exclusively appropriate to himself any portion of the land to the detriment of the other co-sharers and the appellate Court below was, therefore, justified in granting the reliefs prayed for by the plaintiff.
5. The legal position in regard to the right of the co-owner for demolition and injunction in respect of the joint land was considered by a Full Bench of this Court in the case of Chhedi Lal V. Chhotay Lal, AIR 1951 All 199 (FB). In that case the Full Bench laid down:
"The question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. While a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary, if material and substantial injury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. Each case will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused."
In the instant case, a commissioner was appointed by the trial Court to inspect and prepare a site-plan. The map prepared by the commissioner is dated 12-8-1960. It was reported by the commissioner that the house shown by letters A B E H C D was at the time of his inspection in possession of the defendant. A portion of this house marked A B C D is the pucca Osara with six openings towards North. A drain flows from point Z towards the East. The eastern portion of the said house along the line B E, was found to be used as a kitchen by the defendant The walls A, D, D, C, C, H, E and A, B were found to be Pucca walls. There was, however, no wall along the line E B which was covered by a Tatia. It was pointed out by the defendant to the Commissioner that at the place E B there did exist a Pucca wall, but the same had fallen down. The commissioner also found that between the two premises there was an open space shown by letters E F J I G C H. The commissioner found that along the line H C' G I bricks had been placed but they were not plastered. Bricks were found to have been inserted between G. E and G. I. Mud wall was found to be existing at the place E F having a height of about 4 feet. The commissioner also found an open space between F J which was being used by the parties. Along the line E H he found two doors which opened towards the south. Both the courts below found the land in dispute in joint possession of the parties. The appellate Court below decreed the suit on the ground that the defendant was not entitled to make constructions to the detriment of the plaintiff as the plaintiff was also entitled to use every inch of the land of plot No. 408.
6. A Division Bench of this Court held in the case of Najju Khan v. Imtiaz-ud-Din, (1895) ILR 18 All 115 that one of several joint owners of land is not entitled to erect a building upon the joint property without the consent of the other joint owners, notwithstanding that the erection of such building may cause no direct loss to the other joint owners. The ratio of the case was that the law did not favour one co-sharer adversely to the other co-sharers making a partition in his own favour, and selecting the portion of the land he liked by erecting a building upon it.
7. This decision was based upon the decision of a Full Bench in the case of Shadi v. Anup Singh, (1890) ILR 12 All 436 (FB). In that case one of several co-sharers in a mahal had begun to erect certain Kachcha buildings upon the common land whereupon another co-sharer, three or four days after the building had commenced, brought a suit for an injunction to restrain the continuance thereof, on the ground that the defendant was ousting the plaintiff as a co-sharer from a portion of the common land. It was found that the defendant was building upon land which was in excess of the share which would come to him on partition, and that on partition the plaintiff could not be adequately compensated. The Full Bench held that the plaintiff was entitled to a perpetual injunction restraining the defendant from proceeding further with the building, and directing that the building so far as it had proceeded be pulled down, and prohibiting the defendant from building on the land as exclusive owner at any future time. It was also held that it was for the defendant-appellant to show that the lower appellate Court had exercised a wrong discretion in granting the injunction, and that, this not having been shown, the High Court ought not to interfere.
8. In the present case it was established by the plaintiff that the defendant wanted to make certain encroachments on the portion of the land shown by letters E F J I G G I H and had further threatened to make encroachments on the other portions of the joint land. The appellate Court below found it equitable to grant the injunction prayed for. The defendant-appellant has not been able to show why the discretion exercised by the appellate Court below be interfered with. He. however, could make out a case that he was entitled to re-erect a wall at the place shown by letters E B. The commissioner had found that the premises shown by letters A B E H C D had the walls on three sides and there were remnants of the old wall at the place E B. The defendant could, therefore, re-erect a wall at the place E B in order to make the premises safe and habitable. He, however, is not entitled to make any encroachments on any other portion of the joint land and to exclusively appropriate the same to the detriment of the plaintiff, who is another co-sharer in the said property.
9. In the result, the appeal is partly allowed and the decree passed by the appellate Court below is modified only to the extent that the defendant may re-erect a wall at the place B E shown in the map of the commissioner dated 12-2-1960, which shall form part of the decree. In other respects, the decree passed by the appellate Court below is confirmed.
10. In the circumstances of the case the parties shall bear their own costs.