A co-owner not in possession is not entitled to seek an injunction unless the act of the co-owner in possession amounts to ouster or is detrimental to the interest of other co-owners. Mere construction or improvement does not amount to ouster, and the remedy for the co-owner out of possession is to seek partition, not an injunction.

T.H.B.Chalapathi, J.

1. Injunctive relief, permanent or temporary is very commonly sought and granted; hardly a day passes without the Civil Courts dealing with questions concerning this relief. If the principles governing the grant or refusal of this common statutory relief are not well understood, injustice ensues. This prompted one of us (T.H.B. Chalapathi, J.) to refer this revision to a Division Bench after noticing an apparent conflict in the decisions rendered by Single Judges of this Court.

2. The controversy for our consideration is whether a co-owner of the property is entitled to seek an injunction against other co-owner who has been in exclusive possession of the entire or part of the property restraining him from making any construction in that part of the property.

3. In the case of common property the joint tenants or tenants-in-common, all of them are entitled to the said property and are entitled to enjoy the same. If one of them alone holds or occupies the entire property or part of it, his possession cannot be said unlawful. His physical possession is that of an owner of this own interest and also that of an agent as to the other co-owners. Therefore, the possession of one of the co-sharers is the possession of all of them. At the same time, it cannot be said that the person who has been in pessession of the property is holding the property not only for himself but also in favour of other co-sharers. A co-sharer who is in possession of the property is also entitled to the enjoyment of the same. The possession of one of them is possession of all in the eye of law unless the person who has been in exclusive possession asserts his title in himself to the exclusion of the other co-sharer which may amount to ouster. We need not dwell upon this aspect of the matter in this revision petition. Suffice to say, it is for the co-sharer who claims or asserts ouster to prove the same. The point with which we are concerned is: Should a co-sharer abuse the joint property, or otherwise infringe the rights of his co-sharer, what is the remedy available to the other co-sharer? The remedies open to the other co-sharers are:-

(i) partition

(ii) declaration of right, damages and account of profits:

(iii) decree for joint possession: and

(iv) injunction.

There cannot be any problem with the first three remedies open to the co-sharers. The difficulty arises only in the case of remedy of injunction which can be availed of by one co-sharer and under what circumstances the co-sharer who is not in possession of the property can avail the remedy; of injunction.

4. The English Courts have considered it to be against the policy of law to entertain claims of injunctions between joint-tenants or tenants-in-common, a remedy being open to the parties in the form of partition. The Court interposes to restrain the party in possession in the case of coparceners, joint tenants and tenants-in-common, unless the act of co-sharer in possession amounts to destruction, waste or spoliation or unless the wrong doer is insolvent or incapable of paying to the other the excess of the value beyond his own share. If one tenant-in-common is doing merely what any other co-owner might do, the other cannot have an injunction merely on the ground that he does not choose to do so, since each tenant-in-common has a right to enjoy as he pleases. Therefore, a joint owner cannot prevent by injunction the carrying out of the necessary work by another co-owner in property held in common. But if the act amounts to destruction, of the thing itself is (or amounts to) an ouster. When there are acts of positive and actual destruction, an injunction has to be granted since such acts are not done in the legitimate exercise of the enjoyment arising out of the nature of the partys title to that which belongs to him and the other party.

5. In Watson & Co. v. Ram Chand Dutt, ILR 18 Cal. 10(1890). The privy Council laid down the following rules"-

a) that the Court should b