Co-owners cannot claim exclusive rights over joint property without the consent of other co-owners, and a suit for injunction requires substantial evidence of harm.

JUDGMENT

The plaintiff, who has been worsted in two courts below, by the dismissal of his suit for injunction, both prohibitory and mandatory, and that decision affirmed by the lower appellate court, has filed this appeal. Pending appeal, the appellant had passed away and his legal representatives have been brought in as additional respondents.

2. Admittedly, the plaintiff and also the defendants are co-owners having right over the subject matter, the property covered by the suit. The defendants have illegally constructed a foundation for a house in the plaint property without the consent and knowledge of the plaintiff was the basis for seeking the decree of perpetual prohibitory injunction and a mandatory injunction against them. The plaintiff further alleged that the defendants have put up a fence and also committed waste in the property by cutting down some trees. The defendants, in their written statement resisted the case of the plaintiff contending that they have obtained oral consent from the co-owners for putting up the construction, which according to them, was essential for constructing a house for their residence. They also contended that the area in which the foundation was put up in the property was much less the share actually due to them in the property.

3. The learned Munsiff, on the pleadings of the parties and also the materials tendered, found that the plaintiff has not substantiated a case for the relief of injunction, both prohibitory and mandatory, sought for in the suit. In that view of the matter, the suit claim was negatived.

4. The first appellate court, after re-appreciating the materials available on record, concurred with the view taken by the trial court and dismissed the appeal.

5. Challenges canvassed to impeach the concurrent decision rendered by the two courts below, non-suiting the plaintiff are two fold. It is contended that what was pleaded by the defendants was the oral consent for putting up the construction, but in evidence, they attempted to substantiate a case that there was written consent, producing some materials thereof alleged to have obtained from co-owners having right over the property. At any rate, no consent was obtained either oral or written from the plaintiff, admittedly a co-owner of the property. The next limb of challenge is that no co- owner can claim exclusive right over any specific portion of the undivided property and appropriate the same for his use by putting up construction, or do such acts detrimental to the interest of the other co-owners. I find, the grounds set up to impeach the concurrent findings entered by the two courts below are of no avail to the plaintiff/appellant to reverse the decision rendered that no decree of injunction, either prohibitory or mandatory, can be passed in the suit.

6. It is true, when a construction is made in a joint property by one co-sharer, the other co-sharer/co- sharers may obtain a decree for injunction to restrain him from constructing the building. However, whether the injunction has to be granted or withheld, either permanent or mandatory, will depend upon the facts and circumstances of the case. While it is well settled that a co-sharer cannot be allowed to prejudice the interest of other co-sharers and in the event of his putting up any construction in the undivided property, he may be restrained by injunction and be directed to maintain status quo, it is also to be noted that any of the co-sharers can file a suit for partition for division of the properties and in such a comprehensive suit also he can apply for and seek an order of injunction restraining the construction of any structure in the property by other co- sharer/co-sharers. When a co-sharer is filing a suit for injunction alone as against the other co-sharer, just as in any other suit for injunction, the facts and circumstances presented in the case have to be examined as to whether any substantial injury is likely to be caused to the plaintiff by the proposed