Judgement

Appeal from a decree of the High Court (Feb. 15, 1887) by which, on the appeal and cross-appeal of the parties, a decree of the District Judge of Midnapore (Jan. 4, 1886) was modified.

The principal question of law decided in this appeal was as to the rights of tenants in common, inter se, to cultivate or restrain the cultivation of lands in Bengal, so held in a tenancy in common.

The facts and proceedings are stated in the judgment of their Lordships.

Upon the question just stated the District Judge held as follows—

Having given the best attention I was capable of to the circumstances of the case and the respective positions of the parties, I have come to the conclusion that Plaintiffs are entitled to the remedy which they seek. The weight of legal precedent seems entirely in their favour, and although I admit that the decision may involve some hardships upon the Defendants, still, as was observed in Lloyd v. Mussamut Bibee Sogra (25 Suth. W. R. 313.), this is a misfortune inseparable from a tenure of this description. There are some equities in their favour. They have gone to expense in the erection of factories, &c.; but it must be presumed that they have already enjoyed a considerable profit from the indigo which they were enabled to manufacture during the term of their lease and since. Besides, a continuance of the present state of things would give them all the benefit derivable from the available khas lands, while Plaintiffs would get none except by the tedious and uncertain process of endeavouring to bring the rest of the cultivated khas lands under rent (in which, as I have said, their success would seem to be problematical), or else by going to the expense of preparing and bringing under cultivation that portion of the khas lands which is not at present under cultivation, but which might be capable of it. It is a pity that the parties have not been able to come to an amicable arrangement among themselves ; but as they have not done so, their conflicting claims must be decided by legal tests, and in my opinion the Plaintiffs have the law (and by this, I do not mean law as contrasted with equity) in their favour.

He accordingly held the Plaintiffs to be entitled to the injunction sought in the plaint, i.e., a permanent injunction prohibiting the Defendants from sowing indigo, and from allowing anybody else to do so without the Plaintiffs consent.

The declaratory part of his decree was that the Plaintiffs interest in the 4128 bigahs of land cultivated by the Watsons with indigo was two-thirds of 14 annas, that they were entitled to joint possession with the Watsons of those lands, and also to their similar proportion of the rent of those lands calculated at 8 annas per bigah.

In appeal the High Court declared the right of the Plaintiffs to joint possession of the entire 14 annas of the khas lands, and a similar proportion of rent at 8 annas per bigah, and granted an injunction restraining the Watsons from excluding the Plaintiffs by any means from their enjoyment of the joint possession of those lands, and from taking, retaining, or giving to others exclusive possession thereof as against the Plaintiffs. Upon the question of remedy by injunction the High Court expressed themselves as follows—

" But the real question as to the remedy is, whether or not the injunction, which has been granted, can be sustained ; or if that injunction cannot be sustained, whether any narrower injunction ought to be granted. Each side in argument before us took rather extreme grounds. It was contended on one side, that one co-sharer has an absolute right, as a general rule of law, to say to his co-sharer, You shall not cultivate that land in any way without my consent," and to enforce that right, at least in the absence of any special circumstances, by claiming an injunction in a Court of law. It was contended, on the other side, that an injunction between co-sharers is a thing which either ought never to be granted, or at any rate