A co-owner is not entitled to an injunction to restrain another co-owner from exceeding his rights absolutely and without reference to the amount of damage to be sustained by the one side or the other from the granting or withholding of the injunction.

( 1 ) THIS is an application by plaintiff for an injunction restraining the defendant No. 9 from constructing or continuing the construction on the eastern portion and courtyard of the premises No. 89, Burtolla street, in Calcutta within the said jurisdiction. According to the plaintiff, the plaintiff is the owner of an undivided l/4th share of the said premises. The defendant No. 10 is also the owner of an undivided 1/4th share and the defendant No. 1 is the owner of an undivided 1/2 share of the said premises. The defendants Nos. 2 to 8 are shebaits and/or trustees to the said estate of the defendant No. 1.

( 2 ) THE defendant No. 9 is the lessee under an instrument of lease of the eastern portion of the said property for a period of 50 years with the option to extend the same for a further period of 25 years. The defendant No. 9, according to the plaintiff has been causing constructions to be made on the eastern portion of the said property to the detriment and prejudice of other co-owners including the plaintiff.

( 3 ) IT must be noted that the only other co-owner apart from the plaintiff even if the property be joint as alleged is the defendant No. 10. The defendant No. 10 is not objecting to the said construction and as a matter of fact is supporting the case of the defendants Nos. 1 to 9.

( 4 ) THE present suit has been filed by the plaintiff for partition by metes and bounds of the said premises No. 89, Burtolla Street, and allotment of his share to him in severalty. It is the admitted case of both the parties that a long time ago the said premises No. 89, Burtolla Street, was partitioned into two separate portions, eastern portion and western portion between the predecessors in title of the plaintiff and defendant No. 10 on the one hand and the predecessors in title of the defendants Nos. 1 to 8. The respective parties, the plaintiff and the defendant No. 10 and/or their predecessors in title on the one hand and the defendants 1 to 8 and their predecessors-in-title on the other were letting out their respective portions of the said premises to tenants, realising rents, issues and profits therefrom and instituting suits against such tenants for ejectment as well as for recovery of rents separately. Even the rates and taxes payable to the Corporation of Calcutta had been apportioned and paid separately in respect of the said portions by the said respective parties. The rates and taxes were apportioned and being paid separately since the year 1928-29. Copies of the ejectment proceedings and proceedings against the tenants have been annexed to the affidavit of Kala Chand Daw affirmed on 4th February, 1970. From the said documents it appears that the said eastern portion of the property was being treated and described as a divided and separate property by the predecessors in title of the plaintiff. According to the plaintiff the aforesaid conduct of the parties and user of the property only shows that the parties under an arrangement amongst them have been in exclusive possession of different portions of the said property but that cannot prevent partition of the property by metes and bounds and allotment of different portions of the property to the owners.

( 5 ) MRS. Banerjee contends that the allegation as to partition of the property really amounts to denial of the co-owners' title to the western portion of the property and this amounts to ouster and as such injunction should be granted. In any event according to Mrs. Banerjee a lessee of a co-owner cannot affect the rights of other co-owners of the property in respect of the property. In the case of Israil v. Samser Rahman, 18 Cal WN 176 (178) = (AIR 1914 Cal 362 at p. 363) it was observed as follows:". . . . . the mere circumstances that one co-sharer has taken possession of a portion of joint property does not entitle the other co-sharers to claim joint possession; in other words, sole occupation by one co-sharer does not necessarily constitute ou