JUDGMENT
Mahmood, J.
1. The parties to this litigation have been found to he joint owners of the land in suit, upon which the defendants erected certain buildings the demolition of which is the main object of the suit. It has also been found that the said buildings have been recently constructed, and upon these findings the lower Courts have concurred in decreeing the claim and ordering demolition of the buildings.
2. The principal contention urged before me in second appeal on behalf of the defendants is whether, upon the facts found, such a suit was rightly decreed, and with due regard to the rules of equity which apply to suits of this kind between joint proprietors of land. Mr. Moti Lal, whilst conceding on behalf of the plaintiffs-respondents that the land built upon is the joint property of the parties, contends that the building was constructed in spite of the objections of the plaintiffs-respondents to such building going on, and that they were therefore entitled to a decree for demolition of the building in order to have the land restored to its original condition.
3. As a pure question of law as distinguished from the rules of equity this contention may have considerable force, but Courts in India exercise the combined jurisdiction of law and equity, and cannot disregard equitable doctrines in enforcing remedies. The present case is not one in which a stranger has, with knowledge of the plaintiff’s exclusive title, trespassed upon land by building thereon, nor is it a case to which the equitable doctrine of estoppel by acquiescence referred to in Uda Begam v. Imamudin I. L. R., 1 AIL, 82, would be applicable. This is a case in which one joint owner of land commenced building thereon without the permission of his co-owners, the plaintiffs-respondents; and it has not been found by the Lower Appellate Court whether the building was commenced in spite of the protest of the plaintiffs-respondents, or that the latter took reasonable steps in time to prevent the erection of the building.
4. I have already said enough to indicate that a distinction must be drawn between cases in which the building has been erected by a pure trespasser upon the land of another, and cases in which the building has been erected by a joint proprietor on joint land without the permission of his joint co-owners or in spite of their protest. The rules of equity applicable to the former class of cases have been set forth by TURNER, OFFG. C. J., in the case of Uda Begam to which I have already referred, and in the rule therein laid down I concur. But to the latter class of cases somewhat different doctrines of equity are applicable, and they have been the subject of consideration in many of the reported cases, to some of which I wish to refer here.
5. The most important case, so far as India is concerned, is Lala Biswambhar Lal v. Raja Ram, 3 B. L. R., App., 67, where, the parties being joint owners of land, one of them erected a wall upon the land, without obtaining the consent of his co-owner, and it was held by PEACOCK, C.J., that the Court would not interfere to order the demolition of the wall, when there was no evidence to show that injury had been done to the co-tenant of the builder by its erection, and in the course of his judgment that eminent Chief Justice said: “It appears to me that even if the defendant had not a strict legal right to build the wall upon the joint land, this is not a case in which a Court of Equity ought to give its assistance for the purpose of having the wall pulled down. A man may insist upon his strict rights, hut a Court of Equity is not bound to give its assistance for the enforcement of such strict rights.” This ruling was followed in Massim Mollah v. Kanjoo Ghoramee, 21 W. R., 373, and in other cases to which I need not refer, because the effect of the rulings of the Calcutta High Court has been well summarised in Nocury Lall Chuckerbutty v. Binda-bun Chunder Chuckerbutty I. L. R., 8 Oh I , 708, where Field, J., in delivering the judgment of the Court, said: “There is no considerable difference between a case in which the other co-sharers, acting with diligent watchfulness of their rights, seek by an injunction to prevent the erection of a permanent building, and a case in which, after a permanent building has been erected at considerable expense, he seeks to have that building removed. In a case such as that last mentioned, the principle which seems to have been settled by the decisions of this Court is this, that though the Court has a discretion to interfere and direct the removal of the building, this is not a discretion which must necessarily be exercised in every case; and, as a rule, it will not be exercised unless the plaintiff is able to show that injury has accrued to him by reason of the erection of the building, and perhaps further, that he took reasonable steps in time to prevent the erection.” This view was followed by my brother BRODHDURST, with the concurrence of my brother TYRRELL, in Girdhari Lal v. Vilayat Ali, Weekly Notes, 1885, p. 277, and I remember that on more than one occasion I have given expression to the same view, the last being the case of Wahid Alt Khan v. Ghansham Narain, Weekly Notes, 1887, p. 116, in which I concurred with the learned Chief Justice of this Court in adopting the principle of the rule laid down by Sir Barnes Peacock in the case to which I have already referred.
6. These cases have the effect of laying down the rule that when a joint owner of land, without obtaining the permission of his co-owners, builds upon such land, such buildings should not be demolished at the instance of such co-owners, unless they prove that the ac ion of their joint owner in building upon joint land has caused them a material and substantial injury such as cannot be remedied by partition of the joint land. But those cases leave the question open whether when a joint owner of land builds thereon in spite of his co-owner’s protest, such co-owners can obtain demolition of the building without showing that such building has caused material and substantial injury to them such as I have already mentioned. This question was, however, recently considered by a Division Bench of the Calcutta High Court in Joy Chunder Rukhit v. Bvppro Churn Rukhit I. L. R., 14 Cal., 236, where the learned Judges, after considering the earlier rulings of their Court, held that even in cases where joint land has been dealt with in an exclusive manner by one joint owner in spite of the protest of his co-owners, before a Court will make an order directing that a portion of the joint property alleged to have been dealt with by one of the co-sharers without the consent of the others should be restored to its former condition (as, for instance, where a tank has been excavated), a plaintiff must show that he has sustained by the act he complains of some injury which materially affects his position.
7. I agree in the rule laid down in this last case, and I hold that the mere circumstance of a building being erected by a joint owner of land without the permission of his co-owners, and even in spite of their protest, is not sufficient, in itself, to entitle such co-owners to obtain the demolition of such building, unless they can show that the building has caused such material and substantial injury as a Court of Equity could not remedy in a suit for partition of the joint land.
8. Holding these views I do not think I can dispose of this case finally, without dstinet findings on the following points:
1. Has the building sought to be demolished in this suit caused such material and substantial injury to the plaintiffs-respondents as cannot be remedied by partition of the joint land, and, if so, to what extent of the area covered by the building?
2. Did the plaintiffs-respondents object to the building at the time when it was commenced, and did they take due steps in time to prevent the continuance of such building?
9. I remand the case under Section 566 of the Code of Civil Procedure for clear findings upon these points, and upon receipt of the findings ten days will be allowed to the parties for objections under Section 567 of the Code.
