DIJENDRA NARAIN ROY Vs. PURNENDU NARAIN ROY

JUDGEMENT

(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 22 August, 1891. They separated in August 1895 and by deeds executed on the 4 May 1896 and 28 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 21 August 1901 and asked them to desist. Considerable progress, however, had been made meanwhile and the new building was completed shortly after. On the 81 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/s. 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/s. 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/s. 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/s. Ishur Chunder Roy 18 W.R. 12, Mohima Chunder Ghose v. Madhub Chunder Nag 24 W.R. 80, Madan Mohun Shaha V/s. Rajab Ali 28 C. 223, Syed Ali v. Najab Ali 11 C.W.N. 143, Ananda Chandra Sen V/s. Parbati Nath Sen 4 C.L.J. 198, Ram Sankar Bhaduri V/s. Jnanoda Sundari 5 C.L.J. 267, Amba Debya V/s. Jnanoda Sundari 4 C.L.J. 254, Gobind Chunder Ghose V/s. Ram Coomar Dey 24 W.R. 393, Lloyed V/s. 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/s. Rajaram 3 B.L.R. App. 67 : 13 W.R. 337; L.J. Crowdy V/s. Inder Roy 18 W.R. 408; Nocury Lall Chuckerbutty V/s. Brindabun Chunder Chuckerbutty 8 C. 708; Joy Chunder Rukhit V/s. Bippro Churn Rukhit 14 C. 236; Sham Nugger Jute Factory Co. Ltd. V/s. Ram Narain Chatterjee 14 C. 189, Fazilatunnissa V/s. Ijaz Hassain 30 C. 901; Sreemutty Atarjan V/s. Sheikh Ashak 4 C.W.N. 788; Anant Ramrau V/s. Gopal Balvant 19 B. 269; Mohan Chand Nemchand Gujar V/s. Isak Bhai Tanaji 25 B. 248; Paras Ram V/s. Sherjit 9 A. 661 and Shadi Vs. 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/s. 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.