Full Judgment
1. This second appeal has been preferred by the plaintiff.
2. The suit was filed for permanent injunction. According to theplaintiff, the suit property is an undivided property among the plaintiff andother co-sharers, including one B. Rengasamy Naidu. In O.S.No.257 of 1946,a large item of property was sought to be partitioned. The said B. RengasamyNaidu has half share in the entire property. The plaintiff got 2/24 i.e., 1/12thshare in the suit property.
In O.S.NO. 257 of 1946, the Court directed the suit property to be sold and shared by the sharers, but that was not done. The defendants 2 and 3 purchased a portion of the suit property from Rengasamy Naidu. They wereattempting to put up some construction in the undivided suit property. Hence, the plaintiff filed the suit.
3. The written statement filed by defendants 1 to 3, it is contended that they are the co-sharers in the suit property. The plaintiff is not entitled for partition against his co-sharers. His remedy is to file a suit for partition. According to the defendants, the suit property has been divided and each party put up a thatched shed in their respective shares and the thatched shed has been rented out to third parties. According to the defendants, the plaintiff is in possession of the property in the west and has put up sheds. The first defendant has stated that he has put up construction in a portion of the property in his possession. He has also undertaken to remove the construction in the portion if the portion does not fall to his share, if it is found that there was no division already.
4. The third defendant has stated in her written statement that shepurchased a portion from Rengasamy Naidu, son of Srinivasan, a specifiedportion which was in enjoyment of his vendors. She also states that eachco-sharer is in possession of certain area in the suit property for the purposeof enjoyment. According to her also the remedy for the plaintiff is to file asuit for partition.
5. The trial Court after considering the evidence granted injunction in favour of the plaintiff. On appeal by the defendants, the Subordinate Judge, Coimbatore, allowed the appeal and set aside the decree and judgment of the trial Court.
6. The main contention urged by the learned counsel for the appellant is that no injunction can be granted against a co-sharer. There was no division by metes and bounds. Hence, the presumption is that each of the co-sharer is in possession of several parts of the land. Therefore, the defendants are not entitled to put up any construction.
7. On the other hand, the learned counsel for the respondents contended that the plaintiff obtained a decree for partition in O.S.No.257 of 1946. In the final decree in the said suit, it was directed that the suit property must be sold and the sale proceeds must be shared among the co-sharers. But this direction in the final decree was not complied with. On the other hand, the plaintiff is deliberately attempting to prevent the defendants from putting their share into proper use. Hence, he is not entitled to do so.
8. The appellate court has taken/note of the directions in the final decree and also admitted the fact that the plaintiff was entitled to 1/12th share in the suit property. Considering that if the defendants have put up construction, the plaintiff would not be put to any prejudice, the lower appellate Court set aside the trial Court's decree and judgment and thereby refused to grant injunction.
9. The share of the plaintiff is only 1/12th, it is fraction compared to the share of the defendants. Further, the conduct of the plaintiff also could betaken note of. The interim final decree is dated 22-2-1954, as seen from Ex.A.1. The suit has been filed only in 1980. For such a long time, the plaintiff has not chosen to work out his remedy by getting the property sold and having a share in the sale proceeds. When his rights has been finally crystalised i.e., to get a share in the sale proceeds, cannot prevent the defendants who are in physical possession of the suit property and whose rights have not been determined or crystalised as mentioned above, on account of their not being party to the earlier partition suit O.S.No.257 of 1946 and I.A.No.1331 of 1951. In a sense, he is also estopped from preventing the defendants from putting the land inproper use by way of compromise or otherwise after keeping quiet for a very long time without choosing to execute the final decree. His attitude is comparable to the dog in the manger.
10. The learned counsel for the appellant cited following decisions, viz., (1) Prabhoo v. Doodh Nath, : AIR1978 All178 and (2) Sachindra Nath v. Binapani Basu, : AIR1976 Cal277 , to support his contentions.
11. In Prabhoo v. Doodh Nath, : AIR1978 All178 a learned Single Judge of the Allahabad High Court has held in paragraph 15, as follows:
'Another factor that must be borne in mind is that one co-owner has not in law any right to appropriate land to himself out of a joint land against the consent of his co-owners. High-handed action by one co-owner cannot be encouraged by Courts of law. Unless some special equity is shown in favour of the defendant in a suit for demolition of constructions, which are in the process of being made by him without the consent of the co- owners a decree for demolition should not be refused especially when the co-owners have come to court at the earliest.'
In this case the definite case of the defendants is that they are in separate possession of the land. Secondly the plaintiff is not entitled to any portion of the land by metes and bounds, since his right has been determined only as to receive the value of the sale proceeds. Thirdly, his share is 1/12 i.e., a very negligible share. Therefore, the facts of this case does not warrant the application of the principle enunciated in the said case.
12. In Sachindra Nath v. Binapani Basu, : AIR1976 Cal277 , a learned Single Judge of the Calcutta High Court has relied upon the principle set out in Chhedilal V. Chhotey Lal, : AIR1951 All199 and observed as follows:
'The Full Bench of the Allahabad High Court in Chhedilal v. Chhotey Lal, : AIR1951 All199 , considered all the relevant decisions on the subject and held that question of what relief should be granted to the plaintiff in event of the invasion of his rights will depend on the circumstances of each case and there can be no inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. The relief may be granted if the evidence establishes that the plaintiff cannot be adequately compensated at the time of partition and that greater injury will result to him by refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by granting of the relief, the Court will no doubt be exercising proper discretion in withholding the relief.'
From the aforesaid extract, it is very clear that only when material and substantial injury is likely to the party, injunction can be granted against the co-owner. In this case, as we have seen, the right of the plaintiff is to receive only 1/12th share in the sale proceeds and as such the construction put up in the land will not in any manner affect his rights. In view of the above, I am not in a position to agree with the contention of the learned counsel for the appellant. Consequently, the second appeal is dismissed, the judgment and decree of the lower appellate Court are confirmed and the suit is dismissed. However, there will be no order as to costs. C.M.P.No.3657 of 1984 is dismissed as unnecessary.