JUDGMENT : This second appeal arising out of a suit instituted by Julia Leocadia Lucretia Fernandes against the appellant Jose Caetano Vaz merits diamissal in limine.

2. The property in dispute known as Bairo dos Curumbis and situate at Ilha de Rachol is owned jointly amongst others by the plaintiff and the defendant. The defendant began digging up the foundations with the object of building a house on a part of the joint land. The plaintiff filed a suit, within 8 days of starting of the said digging operations, claiming permanent injunction restraining the defendant from carrying on with the building work, besides mandatory injunction directing the defendant to demolish the building he had set up by then. The defendant pleaded that he had the right to build on a part of the joint property, especially when he wanted to build on a portion which was not beyond his share in the joint property. This defence did not prevail with the trial court in the first instance, nor with the learned District Judge, Panaji, in appeal. The trial court decreed the suit by its order dated 30th of April 1968 and the learned District Judge dismissed the appeal filed against the decree of the trial court on 5-8-1968.

3. Shri S. K. Kakodkar, representing the appellant, has invited my attention to the case of Puran Chand v. Nityanand, AIR 1958 Punj 460, wherein it was held that a co-owner is not entitled to an injunction restraining another co-owner from exercising his right in the common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be sustained by the one side or the other from the granting or the withholding of the injunction. On the basis of this proposition, Shri Kakodkar submitted, the courts below were not justified in issuing either the permanent or the mandatory injunction.

I think the proposition reproduced above does not constitute the whole law on the subject of user of the joint property. Grover J. (as he then was), who decided the Punjab case, observed further in the case cited that 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, it was stated further, will be granted or withheld by the court according as the circumstances established in the case justify. In the instant case the plaintiff rushed to the Court, it may be emphasised, w ithin 8 days of the defendant starting the work of digging the foundations for the proposed building. As such the plaintiff was not guilty of any laches, nor can any other charge or lapse attributed to him.

4. Shri Kakodkar also invited my attention to page 292 of N. D. Basu's work on the Law of Injunctions, 1965 edition. A perusal of pages 292 to 297 of that work would bring out that a co-owner is not entitled to change the nature of the possession enjoyed by him of the jointly owned property, nor use the property in a mode different from that in which it had previously been used. It is also mentioned in the treatise that where a co-owner seeks redress at the hands of the Court in proper time and the defendant happens to raise the greater portion of the building since after the institution of the suit and with full knowledge of the proceedings, it would be a proper case for granting an ad interim injunction restraining the defendant from proceeding further with the building and the Court may also direct removal of the building already set up. Shri Basu cited with approval the following observations made by Jessel. M. R., made in the case of Krehl v. Burrel, (1878) 7 Ch. D. 551 :

"If with the notice of the right belonging to the plaintiff, and in defiance of that notice, without any reasonable ground, and after action brought, the rich defendant i

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