SOSHI BHUSAN GHOSE Vs. GONESH CHUNDER GHOSE

JUDGEMENT

(1.) THE plaintiff and defendants, who are nearly related, live in a two-storeyed house of ten rooms, five on each floor. THE plaintiff oooupies two rooms on the groundfloor and two rooms on the first floor, while each of the three defendants oooupies one room on the groundfloor and one room on the first floor. THEre is a staircase inside the house loading to the roof past the first floor. THE plaintiff's case was that this staircase was the joint property of himself and the defendants, and that the defendants had obstructed it, so that he was unable to obtain access either to his rooms on the first floor or to the roof, and h there ore, prayed for a perpetual injunction restraining the defend-ants from continuing the obstruction. THE case of the defendant No 1, who alone contested the suit, was that there had been a pardon among the members of the family, and that at this partition the staircase had been allotted not to the plaintiff but to the three defendants, and that he himself, with the consent of the other defendants, had converted the chillaghar (or pen-house built on the roof to protect the staircase) into a room for his own use, where he kept valuables.

(2.) THE learned Subordinate Judge, on appeal, has found that the staircase is the joint- property of both plaintiff and defendants and has granted the injunction sought for. THE defendant No. 1 on appeal to this Court, does not object to the injunction so far as it relates to the obstruction between the groundfloor and the first floor, but he objects to it so far as it compels him to refrain from obstructing the plaintiff's access to the roof from the first floor. It is contended on his behalf that, even if the staircase is joint-property, as it is found to be, the Subordinate Judge should not have granted an injunction against the latter obstruction, but should have held that this was a case not for an injunction, but for damages. In support of this contention reference is made to the Shamnugger Jute Factory Company V/s. Ram Narain Chatterjee (1896) I. L. R. 14 Calc. 180 (198), in which it was laid down that in granting or withholding an injunction, the Courts exercise a judicial discretion and weigh the amount of substantial mischief done or threatened to the plaintiff, and compare it with that which the injunction, if granted, would inflict upon the defendant With that principle we are in entire agreement. But in the present case it is no mere case of damage to the plaintiff; the defendant's act amounts to an ouster of the plaintiff from his possession of the staircase which affords him access to the roof In such a case an injunction is a proper remedy, as was held in Anant Ramrav V/s. Gopal Balvant (1894) I. L. R. 19 Bom. 269. It is not a case where, to use the language of Section 54 of the Specific Belief Act, pecuniary compensation would "be an adequate relief. THE mere fact that the defendant, in invasion of the plaintiff's right, has found a great convenience in converting the chillaghar into a room for keeping valuables is no ground for refusing an injunction. We find that the learned Subordinate Judge has rightly used his discretion in issuing the injunction, and we accordingly dismiss this appeal with costs.