Khimji Mulji vs Popatlal Bhanji and Others

Shah, C.J.—This is an appeal against the Judgment of Jhala J. reversing the decision of the Dist. J. Halar Division, which confirmed the decree of the Munsiff of Bhanvad by which the plffs'' suit for certain mandatory & perpetual injunctions against the deft, was dismissed. The parties are near relations & are descended from a common ancestor. The family originally owned all the nix houses in a ''Deli'' situated at Bhanvad. The Deli faces the south & the houses are situated in two rows with a passage in the middle. The deft is the owner of the southern two houses on either side of the passage. The two houses to their north & the north western house are owned by Kalidas Kauji & the north eastern house is of the joint, ownership of the plffs. & the deft. It is not, however, the residential house of the plffs. The deft sought to construct a ''Ravesir (balcony) 10� long and wide, at a high of 12".10" from the ground level to connect his two houses, but this was objected to by the pin''s, on the ground that the deft, was not entitled to use any part of the Deli without their consent; & they therefore sued to demolish the part of the balcony that was already constructed, & also prayed for a permanent injunction restraining the deft. from proceeding with the construction of the same. The trial Judge dismissed the suit holding that the construction did not interfere with the plffs�. enjoyment of the common passage, nor did injure any of the plffs''. rights as joint owner of the passage, & this decree was confirmed on appeal by the Dist. J. who held that a co-owner could not object to a construction made be Anr. co-owner, if the construction did not cause any injury or inconvenience to him, & that no such injury or inconvenience was proved to have been caused to the plffs. In second appeal, however, Jhala J. took the view that one co-owner cannot build on any part of the joint property without the consent of the other co-owners & that such construction was a violation of the rights of the other co-owners & was actionable per se without proof of any inconvenience, damage or hardship to the plffs.

The deft, does not seek to build on any part of the joint land so as to deprive the plffs. of the user of that part of the land altogether. The construction sought to be made is of an overhanging balcony to connect the two houses of the deft on either side of the common passage of the Deli, & the deprivation, if any, is of that part of the aerial column above the land which might be covered by the balcony. The entrance door of the Deli is 6�'' high from the ground. The balcony which the deft. has commenced for build adjoins the said door & is thus in a corner of the common passage. It is at a height of 12''. 10" from the ground & is thus higher than the door of the Deli itself by more than six feet. Besides it is not to be covered by a roof & is to be open to the sky, & Mr. Joghi for the deft, appellant has agreed that the height of the railings from the floor of the balcony is not going to be more than three feet. The plffs. do not allege in the plaint that the balcony would interfere with their enjoyment & user of the passage of the Deli. & they rest their claim on the sole ground that they are the co owners of the common passage & that no construction could be made on the passage or above it without their consent. Mr. Mankad for the plff-respondents has urged that an exclusive user of a part of the joint property by one co owner constitutes an invasion of the rights of the other co-owners which is actionable per se & that the co owners need not prove any actual injury or inconvenience, & he has relied on a decision of the Allahabad High Court in Shibba Mal and Another Vs. Naurang Mal, . The facts of that case were no doubt similar & the deft. had there built a balcony from his house projecting over a considerable width of the common passage. It appears to have been held by Walsh J in second appeal that one of the joint owners of a piece of land which has been used as a passage cannot maintain a suit, unless he can show that the right of passage has been substantially interfered with. In the Letters Patent Appeal filed against that decision the view taken was that one joint owner of private property has no right to do anything which will make the joint property more exclusively his.

Therefore, if such joint owner builds a balcony projecting over the passage, the other joint owner is entitled to sue for its removal. The judgment does not refer to decided cases on the subject, nor does it deal with the point at issue in any detail, & it contains no reasoning in support of the view taken. This decision has not been followed in Babu Ram Nandan Sahay and Others Vs. Jai Gobinda Pandey and Others, Babu Bindeswari Prosad Sinha and Others and Goberdhan Sahu and Others, , principally because none of the earlier decisions of the Calcutta High Court & the Allahabad High Court had been considered or even referred to in that case. After a review of the, decisions on the subject Das J. held that before a Court will, in the case of co sharers, make an order directing that a portion of the joint property alleged to have been dealt with by one of the co-owners without the consent of the Ors. should be restored to its former condition, the plff. must show that he has sustained by the act he complains of some injury which materially affects his position. One of the decisions referred to was The Shamnugger Jute Factory Co. Ltd. v. Ram Narain 14 Cal. 189, where it was held that no decision has gone so far as to establish the broad proposition that

one co-owner is entitled to an injunction restraining Anr. co-owner from exceeding his rights, absolutely, & without reference to the amount of damage to be sustained by the one side or the other from the granting or withholding of the injunction.

This decision was also referred to with approval a followed in Krishnan Pillai v. Kilasathammal AIR 1928 Mad. 810. The dispute in that case related to a land of about 5�'' in width which was the common property of the parties used as a passage for human beings for going in & coming out of their houses & possibly for cattle, & there also the plff. sought the demolition of a terrace over the land on the strength of his legal right. There was no proof of interference with the pill''s, user of the land by the deft, constructing the terrace over the passage. It was observed that

of course she legal right is assumed, but when it is a question of the relative convenience or in convenience & the extent of damage to the one party or the other, the Court is bound to take into consideration the extent to which, by reason of the encroachment of the common rights committed by the deft, the plft''s. enjoyment or unaccustomed user has been inconvenienced or interfered with.

It was not proved that any actual inconvenience or discomfort was caused to the plff. & the utmost that one could think of was that if this portion of the passage was covered by terrace, the sunlight & the pouring rain will not fall on the passer by on that part of the passage. This was not considered to be any real inconvenience or source of discomfort to the plff. The following observations in The Shamnugger Jute Factory Co.''s case 14 cal. 189 were there quoted with approval:

The granting of injunctions is now regulated by Sections 54 & 55, Specific Belief Act. But the sections have never been understood as introducing new principles of, law into India, but rather as an attempt to express in general terms the rules acted upon by Courts of Equity in England, & long since introduced in this country, not because they were English law, bat because they were in accordance with equity & good conscience.

The question of the right! of co-sharers in. respect of joint land has been the subject of a recent decision by the Allahabad High Court in Chhedi Lal and Another Vs. Chhotey Lal, , & after a review of the decisions of several High Courts it was there held that

the question of the right of co-sharers in respect of joint land should be kept separate & distinct from the question as to what relief should be granted to a co sharer, whose right in respect of joint land has been invaded by the other co sharers either by exclusively appropriating & cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to Anr. co-sharer exclusively appropriating, land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plff. in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition & injunction will be granted or withheld by the Court according as the circumstances. established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plff. cannot be adequately compensated at the time of the partition & that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material & substantial injury will be caused to the deft, by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. AS has been pointed out in some of the cases, each case will be decided upon its own peculiar facts & it will be left to the Court to exercise its discretion upon proof of circumstances showing which: side the balance of convenience lies. That the Court in the exercise of its discretion will be guided by considerations of justice, equity & good conscience cannot be overlooked & it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition & injunction should be granted or refused.

In Manilal Ratanchand Shah Vs. Nanubhai Jesingbhai and Others, , the deft, had opened doors & windows in the northern wall of his house abutting on a ohhindi (lane) measuring 48 feet in length &, 5 feet in width & he also threatened to construct a balcony projecting 2 feet 9 inches into the chhindi at a height of 14 feet 10 inches from the ground. Two unreported decisions of the Bombay High Court were referred to by Lokur J. in the course of the judgment, one of which was by Sen J. in S.A. No. 631 of 1936. There the parties were joint owners of a plot of land. Sen J. observed:

I think that it would be restricting the claim of the plff., unduly to hold that he claims only the right of passage through it & nothing more. Prima facie, therefore, the plff. has the right, though he has not so far exercised that right, to the whole aerial column above the land in question as a tenant in common with the defts., & as the balcony covers the whole breadth of this area, there is prima facie an ouster of the pls. to that extent. The defts. are asserting their sole title to the entire column of air above the projection.

Another decision was of Wassoodew J. in S.A. No. 579 of 1935, who in refusing to grant and injunction observed:

In this case it is not suggested that the defts. act in projecting the balcony would be inconsistent with, the continuance of the joint ownership & possession of the around underneath. The height of the balcony is about 12 to 14 feet above the level of the common ground, & its projection, as I have said, is only 18 inches beyond the limits of the defts. land. If there is no allegation and proof that such projection would cause material discomfort to the other owners, or would be an obstruction or a hindrance to the common use of the land, it was wrong to imagine a grievance which in fact did not exist, or rather which was not supported by the evidence. There must be clear evidence of ouster amounting to a trespass which would justify the interference of the Court in a case of this land.

Lokur J. also relied upon the observations in 14 Cal. 189 quoted above, & on the facts of the case he permitted the construction of the balcony over a space of two feet in width & refused the injunction.

The position thus is that a co-owner is not entitled to an injunction restraining Anr. co-owner from exercising his rights in the common property absolutely & simply on the ground of his co-ownership & without reference to the amount of damage to be sustained by the one holding of the other from the granting or the withholding of the injunction. Now the breadth of the balcony which the deft, proposes to construct is 3� feet which is a small fraction of the total length of the common passage of the Deli which is about 51 feet, so that only a very small part of the said passage is being put by the deft, to his own use. No doubt the breadth of the entire passage is going to be covered, but considering that the balcony is quite close to the entrance door of the Deli & is at a height of 12 feet 10 inches from the ground, that is, about six feet higher than the height of the entrance door itself, no inconvenience or discomfort is likely to be caused to the plffs., nor is their right of way going to be injured in any way by the overhanging balcony. Nor again any inconvenience or injury going to be caused to the plffs.'' right to the benefit of the aerial column because the balcony here is going to be at the utmost three to four feet in height including the girders. No question of ouster of the plffs. from the user of the land arises in this case because the deft, does not assert a higher title to the land underneath the balcony, & the plffs. too have not alleged that they would be ousted from the enjoyment of the land if the balcony was constructed. Therefore, in the absence of any inconvenience or injury to the plffs.'' right of passage over the common land & in the absence of any outer of the plffs., no mandatory or permanent injunction could be issued to restrain the deft, from constructing the said balcony. We, therefore, allow this appeal, set aside the decision of Jhala J. & dismiss the plffs.'' suit with costs throughout.

Chhatpar, J.

I agree.