AMROJ SINGH Vs. RAM LAKHAN SINGH

JUDGEMENT

(1.) THIS is a defendant' appeal arising out of a suit for joint posses sion over the land shown by letters ABE H C D and for permanent injunction to res train him from interfering with the plaintiff possession over the land shown by letter 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 plain tiff 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 de fendant got dug the foundation. The plain tiff stated in the plaint that if the construc tions 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 plain tiff the decree passed by the trial Court was reversed and the suit was decreed.

(3.) THE legal position in regard to the right of the co-owner for demolition and in junction in respect of the joint land was con sidered 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 sepa rate 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 ex clusively 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 accord ing as the circumstances established in the case justify. THE Court may feel persuaded to grant both the reliefs if the evidence esta blishes 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 in jury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in with holding such relief. Each case will be decid ed 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 win 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 circum stances in which the relief for demolition and injunction should be granted or refused." In the instant case, a commissioner was ap pointed 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 wag 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 commis sioner also found that between the two pre mises 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 be tween 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 I which wag 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 detri ment of the plaintiff as the plaintiff was also entitled to use every inch of the land of plot No. 408.