Direction to demolished the building put up by one co-owner on the joint land.

This Second Appeal by defendant 7 arises out of a suit instituted by the late husband of the first respondent for a mandatory injunction directing him to remove an encroachment consisting of a portion of a pucca building and a compound wall on a part of the land in T. S. No. 1551 and for other reliefs. The plaintiff claimed he had in June, 1947, purchased the land covered by T.S. Nos. 1552 and 1553 and was, therefore, entitled in common with defendants 1 to 6 to the exclusive use of the lane. He further maintained that defendant 7 had wrongfully encroached upon a part of the lane and was bound to remove the offending structure. Defendant 7 alone resisted the suit, defendants 1 to 6 remaining ex parte. He denied the encroachment and the plaintiff’s right to the lane. He also pleaded that in any case there was no case to direct removal of the encroachment.

The following facts as found by the Courts below are no longer in dispute before me. The encroachment was true but the compound wall occupied only a width of 5 inches on a margin of the lane while the encroachment by the building covered a little longer space on the same margin of the lane. The land comprised in T. S. No. 1551 belonged to the plaintiff as well as defendants 1 to 7 in common. The encroachment had come into existence even before June, 1947 and neither the plaintiff’s vendor nor defendants 1 to 6 appeared to have objected to it. The encroachment did not cause material or substantial injury or inconvenience to the co-owners in the use of the lane as a passage. On these findings the trial Court dismissed the suit. The lower appellate Court agreed with it so far as the compound wall was concerned as it encroached upon a width of only 5 inches. But it disagreed with the trial Court and ordered removal of the encroachment by a part of the building on the ground that it occupied a wider space on the lane. Hence this Second Appeal by defendant 7.

The question, therefore, is whether the lower appellate Court was justified in granting a mandatory injunction to the extent mentioned above. Sri R. Ramamurthi Ayyar, the learned counsel for the appellant, contended that this is not a case of a trespasser putting up a construction upon the land of another, but a case of a co-owner exceeding his rights, if at all, in putting up a construction over a portion of the land owned in common. He argued that in such cases, unless it was established by the co-owners aggrieved against the encroachment by another co-owner of a portion of the common property that the encroachment caused material and substantial injury to them in relation to their right to use the lane as a common passage and that the encroachment, when it was being built, was objected to by the complaining co-owners, no mandatory injunction could be granted for the demolition of the encroachment. In support of his contention the learned counsel cited a number of authorities. But it is not necessary to refer to all of them.

A Division Bench of the Patna High Court in Krishna Kumar v. Padum Singh1, held that the plaintiff who complained of the building of a permanent structure on the joint property by his co-owner, could not obtain a decree for its demolition or for joint possession, unless he established that he had sustained some substantial injury by reason of the act and that he took reasonable steps in time to prevent the erection. In that case the defendant who was a co-owner had put up a substantial structure on a portion of what was admittedly a joint property. As the plaintiff there failed to establish those elements, mandatory injunction to remove the encroachment was refused. In so doing, the learned Judges, after referring to a number of decided cases, quoted from and relied on Ananda Chandra v. Parbati Nath2, as laying down the correct principles of law applicable to such cases:

“I am not prepared to hold that an exclusive appropriation by one co-owner of a part of the joint land to his own use by the erec