Co-owner being injured by action of another co-owner can take action inspite of objection by other co-owner.

This second appeal is directed against the judgment of the learned Subordinate Judge in A.S.No.43 of 1984, dated 12. 1984 confirming that of the learned District Munsif, Tiruchirapalli in O.S.No.594 of 1979 dated 19. 1982.

.2. The plaintiff in the above mentioned suit is the appellant herein having filed a suit for mandatory injunction. The plaintiff contended that the suit property was the self-acquired property of the father of plaintiff and the defendant. Their father had effected a registered partition deed dated 6. 1972. As per the said partition deed, the plaintiff was allotted the second item in ‘A’ schedule. From the date of partition, the plaintiff and the defendant had become divided and they were in possession and enjoyment of their respective shares. The plaintiff further contended that he has right in the common pathway from south to north. The measurement of the same is 5. At the entrance from the south, there was already a common latrine existing on the extreme southern side and the plaintiff has ingress and egress in the south to north common pathway which is shown as EF in the plan, the first portion belonging to the plaintiff. The other sharers are having equal rights to have common access to their respective property from the south and as per the recitals in the partition deed, the parties are entitled to have a common right to enjoy the common access, that the plaintiff is entitled to take water from the common well in the northern side of the defendant’s property and the defendant had deliberately constructed a lavatory and bathroom in the common pathway in between the portion marked as EF and that from the newly constructed lavatory bad smell emanates and causes great danger for the health and hygiene to the inmates and that the defendant had no right to construct the lavatory and bathroom in the common access. The plaintiff further contended that he was employed at Jabalpur and the defendant had constructed the lavatory and bathroom in February, 1979 and the same was the offending construction. The plaintiff further pleaded that the same affected the free ingress and egress to plaintiff’s right of passage and open space was causing a great danger to the health and hygiene to the inmates of the plaintiff’s house and that the newly constructed lavatory and bathroom covered the major extent of the common access in front of his portion. It was further pleaded that the defendant was having open space in front of his property in the north and he could construct lavatory and bathroom in his portion. The construction of the new lavatory and bathroom was a deliberate invasion of the plaintiff’s right in the common pathway and hence the suit.

.3. The defendant resisted the suit contending that the suit as framed was not maintainable in law inasmuch as there was no prayer for declaration for the suit property as a common pathway and the suit property was not ear-marked as a common pathway. The defendant disputed the plan filed along with the plaint and the contention that there was a common pathway had no foundation either in the partition deed or under any other circumstances. It was further contended that the plaintiff cannot demand user other than the one to which it was put to, namely, when the property was given to him it was only a carshed and he cannot demand new rights much less novel rights. It was further contended that the plaintiff had not complained at the relevant time when the construction was being put up even though he was fully aware of that and therefore he was estopped from claiming the right of demolition.

4. During the trial both the plaintiff and defendant examined themselves as witnesses and Ex.A-1, the copy of the partition deed was filed by the plaintiff along with a rough plan of the disputed property.

5. Both the courts below considered the evidence and held that the plaintiff has not established his claims and therefore rejected, the suit praying for a decree for mandator