Patna High Court
Debendra Prasad Sukul vs Babu Surendra Prasad Sukul And Anr. And ... on 14 December, 1920
Equivalent citations: 59IND. CAS.975, AIR 1920 PATNA 813
JUDGMENT Ross, J.
1. This appeal arises out of a suit between two cousins who formerly belonged to a joint family. A partition took place in 1885 and 1886 by which the family residence was divided; the plaintiff-respondent was given a portion of the house, to the west of which lay some land which was left joint. On a part of this land the defendant, apparently with the consent of the co-sharers, built his house, the remainder lying waste and unoccupied. This waste land is described in the map annexed to the plaint as "Sehan and flat", To the east of this, and on the west of the plaintiff's house, were two privies belonging to the plaintiff; and, according to the plaintiff's case, the sweeper had access to these privies over this waste land. A screen wall was erected to the west of the privies by the plaintiff in the middle of which an opening was left. The defendant has now built a verandah on the west side of this open land and has closed the opening in the screen wall and has built another screen wall between two privies of his own lying to the south-west of the premises, the result of which is that access to the plaintiff's privies through the open land has been completely out off.
2. The plaintiff brought this suit for the removal of these obstructions. The Munsif passed a decree ordering the defendant to remove the screen wall which he had created and to make an opening in the plaintiff's screen wall sufficient to admit of access by that way. On appeal to the District Judge the decree of the Munsif was upheld.
3. Two points were urged in this appeal. It was contended, in the first place, that the case in the plaint is a case of easement and that no easement has been proved. On behalf of the respondent it was admitted that the plaint was not artistically drawn, that the word easement which there occurs ought not to have been used, and that the case is not a case of easement at all. In the second place, it was argued for the appellant that if the case is treated, as it has been treated, as a case of user of joint land the plaintiff is not entitled to a decree, because he is seeking to establish a user of joint land which is not for the purposes of the joint land but for the purposes of his exclusive land on the east thereof, and that, if it is repugnant to the feelings of the plaintiff that the sweeper should go through his inner apartments, it is repugnant to the feelings of the defendant that the sweeper should pass through his house, and that consequently the reason which has been advanced in support of the decree can equally be urged against it. The latter portion of the argument has no force. The land was undoubtedly used by the plaintiff's sweeper as a means of access to the plaintiff's privies before it was enclosed by the defendant, and the defendant, well-knowing that practice, enclosed the land and if, in doing so, he infringed the plaintiff's rights, he cannot plead any in-convenience to himself if the original state of things is restored.
4. The real question in the case is, whether the plaintiff's rights have been infringed. The appellant relies most strongly on the decision in Anant Ramrav v. Gopal Balvant 19 B. 269 : 10 Ind. Dec. (N.S.) 182 where, after observing that the exercise of the Courts' jurisdiction to grant relief by way of injunction in disputes between members of a Hindu family must be attended with very great difficulty, Sargent, C.J., said that he did not think that there would be any practical objection to doing so in those particular cases in which, as between tenants in common, the Courts grant that form of relief; and that, following the practice of the Courts of Equity, that would be confined to acts of waste, illegitimate use of the family property and acts amounting to ouster. Reference was also made to the case of Dwijendra Narain Roy v. Purnendu Narain Roy 5 Ind : Cas. 171 : 11 C.L.J. 189, where it was laid down that the test is whether the defendant has made use of the joint property in a way consistent with the continuance of joint owner-ship and possession. The respondent contends that this is a case of ouster and that his access to the joint land has been completely out off. It is true that this view of the case is not set forth with any great clearness in the plaint. The suit is not expressly framed as a suit arising out of the ouster of the plaintiff, but placing a benevolent construction on the pleadings I think it may be taken that this is what was meant. The plaintiff exercised his undoubted rights of ownership and possession over this piece of waste land by using it for the purposes of the access of the sweeper to the privies in his house and in so doing he exercised ownership in a manner which was innocent and inoffensive, until the defendant altered the condition of the land. As the result of the defendant's building on it, the land has ceased to be available to the plaintiff for this purpose. In the case of Lloyd v. Musammat Bibee Sogra 23 W.R. 313 it was laid down, "that it is impossible to contend, with any semblance of reason or justice, that any one co sharer in an undivided property has a right to possess himself of any portion of it to the exclusion and without the authority of his co sharers and to deal with it...as he will, without their sanction". And, similarly, in Sheo Pershad Singh v. Leelah Singh 20 W.R. 160 : 12 B.L.R. 188 it was held that a co-sharer cannot materially alter the condition of the property without obtaining the sanction of his co-sharers. This is what the defendant has done and his act amounts to ouster of the plaintiff from the land in the sense that he is no longer able to use it in the only way in which it is of any use to him.
5. In my judgment, therefore, the decrees of the Munsif and of the District Judge are right and should be maintained. The appeal is dismissed with costs. The cross appeal was not pressed and is dismissed.