Chandan vs Risala and others

J.V. Gupta, J.—This is plaintiff''s second appeal whose suit for the grant of the permanent and mandatory injunction was decreed by the trial Court, but in appeal, the relief of mandatory injunction was disallowed.

The dispute between the parties relates to the site shown as A, E, F, G, H and C in the site plan, Exhibit P.1. According to the plaintiff, it is a common compound meant for both the parties. As the defendants were bent upon encroaching upon a portion of this property for their exclusive use; hence the present suit. The suit was resisted inter alia on the ground that the compound in front of the defendant''s house was meant for them alone and that they were justified in raising the chabutra on the same. The trial Court found that the said site was a part of the common compound meant for the common use of the parties and that no party had a right to raise construction thereon. Consequently, the plaintiff''s suit was decreed. In appeal, the learned Additional District Judge affirmed the said finding of the trial Court, but declined to grant the relief of mandatory injunction, mainly on the ground that no case for special damage was made out by the plaintiff and, therefore, he was not entitled to the discretionary relief of mandatory injunction. Dissatisfied with the same, the plaintiff filed the second appeal in this Court.

The learned counsel for the appellant contended that since the site, in dispute, was incapable of partition, the plaintiff was entitled to the relief of mandatory injunction as well. On the other hand, the learned counsel for the respondents submitted that no such plea was taken, nor was there any such finding given by either of the Courts below and, therefore, it could not be urged on behalf of the appellant that the site, in dispute, was not capable of partition. Thus, this Court vide order dated November 30, 1983 framed the following additional issue :

"Whether the compound shown as A, E, F, G, D, H and C in the site plan, Exhibit P.1, is capable of partition or not ? " and sent for the report from the trial Court after allowing the parties to lead necessary evidence.

The said report dated February 10, 1984, has been received in this Court. It has been found that the said compound is not capable of partition. In view of the said report, the plaintiff is entitled to the relief of mandatory injunction as well. However, the learned counsel for the respondents contended that since the respondents had already raised the construction on the site, in dispute, the plaintiff was not entitled to the discretionary relief of mandatory injunction. In support of this contention, the learned counsel relied upon Narain Dass v. Atma Ram, AIR 1974 Rajasthan 144. However, I do not find any merit in this contention. It was held in Yusuf Alim Hakimji v. Muhammad Din, AIR 1927 Lahore 718, that in a suit for the grant of injunction against a coowner relating to the erection of structures on the joint property, if the property is not partible, there is no occasion for the plaintiff to show any special damage. It is sufficient for him to show that he has been deprived of the user of the property as it stood originally. Similarly, in Chhaganlal v. Kesarlal, AIR 1959 Rajasthan 97, it was held that if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given to the other coowner is the mandatory injunction for restoration of the joint property to its original condition by the demolition of the new construction. As a matter of fact, the very fact that the site, in dispute, is not partible, the plaintiff is entitled to the mandatory injunction as prayed as well and the trial Court rightly granted the same to him.

In this view of the matter, the appeal succeeds and is allowed. The judgment and decree of the lower appellate Court in not granting the relief of the mandatory injunction as well are set aside and that of the trial Court decreeing the plaintiff''s suit in toto are affirmed with costs. The crossobjections filed on the behalf of the defendants are dismissed.