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Petitioner: JAN MUHAMMAD VS Respondent: BARKAT ULLAH
P
P. L. D. 1951 Lahore 447
Before A. R. Cornelius, A. C. J.
JAN MUHAMMAD and another‑Defendants‑Appellants
versus
BARKAT ULLAH and others‑Plaintiffs‑Defendants‑Respondents
Second Appeal No. 181 of 1950, decided ‑on 20th July 1951 from the decree of Khan Inayat Ullah Khan, Additional District Judge, Lahore, dated the 28th day of April 1950, affirming that of Mian Muhammad Saleem, Sub‑Judge, 1st Class, Lahore, dated the 27th June 1949, granting the' plaintiff's a perpetual injunction restraining the defendants, from building structures on, and issuing a mandatory injunction ordering the defendants to demolish and remove all the structures from, shamilat land.
(a) Custom (Punjab)‑Shamilat land‑Enjoyment of‑Gover ned by incidents of agricultural custom‑Rattigan's Digest of Customary Law, Art. 225.
The land being part of the area of a village and forming part of the shamilat of that village, it must be assumed to be governed by the incidents of agricultural custom, as laid down in Article 225 of Rattigar's Digest of Customary Law.
(b) Custom (Punjab)‑Shamilat land‑Co‑sharer turning part to his exclusive use‑Other co‑sharers' right to object -Relief by way of injunction‑Principles stated‑Each case turns on own facts‑Customary covenant runs with the land‑Whether Possibility of adjusting objecting co‑sharers' claims at time of ultimate Partition valid ground for refusing injunction where there is no lacks‑(Rattigan's Digest of Customary Law, Art. 225)‑(Authorities examined).
[Mandatory injunction granted in this case].
In the existing state of the authcrities, it is difficult to discover any clear guidance from any of them. Indeed, every case turns on its own facts, and all .the attendant circumstances must be taken into consideration in determining whether or not the relief by way of injunction should be allowed. The essential question is whether, a restrictive covenant based on agricultural custom, and enuring for the benefit of all the proprietors in a joint property, can, in the circumstances, be enforced. The origin of the covenant is fairly clear ; it derives from the rights originally set up at the establishment of the village, and enures in favour of the descendants of the founders, whose shares in the joint land devolve in proportion to their shares in the proprietary lands. By the custom which is set out with clarity in Article .225 of Rattigan's Digest each of the joint proprietors acknowledges in himself, and enforces against every other co‑proprietor, a duty to refrain from converting any part of the joint land to his own use in such a manner as to alter the condition of the joint land in respect of its enjoyment by the entire body of the co‑sharers.
Circumstances may arise in which this obligation becomes of no effect or utility, such as if the land is overflown by a river and becomes part of the river‑bed, or is otherwise rendered wholly useless for, any purposes known to the agricultural community. At the same timer if the persons entitled to enforce the obligation acquiesce in a changed user of part of the property by any of their number, it would hardly lie in the mouth of any of them to prevent any other of their number from subjecting any other portion of the land to similar use. Again, if for a considerable period, there has been enjoyment by any of the proprietors of any portion of the land which is not consistent with the restrictive covenant binding them all; there may be a presumption that they have all agreed that the covenant should be released. (Halsbury's Laws of England, 2nd Edition, Volume XIII, page 128). Where such conditions exist, it is conceivable that a Go‑sharer seeking to restrain another by injunction for an actual or threatened user of a part of the joint land may be required to show in pre than mere ‑user or threatened user e.g., that there has been ouster, or a claim of exclusive owner ship is involved, or that there is material and substantial injury. But if the property remains in its original condition, then Article 225 which embodies a custom having the force of law, and not merely an equitable right, applies with, full force, and there is a right to restrain against any user such as has the effect of altering the condition of the joint property, unless the consent of all the co‑sharers has been obtained.
A covenant of this kind runs with the land, and in the absence of expression in their sale‑deeds the non‑proprietor vendees must be deemed to have acquired their shares subject to the same obligations and restraints as were applicable to their vendors.
That the rights of all the ca‑sharers can be duly worked out and allowed, if necessary, in terms of money at the time of ultimate partition, is not the governing consideration in a case where there is no laches nor any indication of long continued user not consistent with the original intention, nor of any acquiescence in changed user nor of such change in the character of the property as would completely take it out of the operation of Article 225. of Rattigan's Digest.
B. Z. Kaikaus and S. M. Haq, for Appellants. Sh. Bashir Ahmad and Sh. Akbar Ali, for Respondents.
JUDGMENT CORNELIAS, A. C.J:‑The suit out of which this second appeal arises relates to a field in village Attoke Awan in the Lahore district, lying to the north of the Grand Trunk Road and immediately opposite the large modern boot factory of the Bata Company. The khasra number is 1838 and the area is 1668 marlas. The land is described as shamilat of village Attoke Awan, but the maliks included a number of proprietors from another village described as Chak No. 39. Originally, the number of co -sharers in this field was very large, but it is on the record that a mem ber, including most of the proprietors from Chak No. 39, have dis posed of their shares and the number of the co‑sharers left is about 300. ' As an instance of the consolidation which has proceeded in this respect, the case of the plaintiffs and of the defendants may be cited. Originally, the plaintiff Barkat Ullah owned a 43/1668ths share and his wife Mst. Talian Bibi, the second plaintiff, owned 17/1668ths share. . By means of purchases which were duly registered in mutations in the course of the proceedings, their share has increased to 688/1668ths altogether. On the other side, the original share in the field owned by any of the defendants measured only 6 marlas 8 sarsahis, but at the time of the suit, the total share of the three defendants had increased to 88 marlas and 8 sarsahis. The defendants have constructed buildings as well as a flour mill on an area of 55 marlas out of this field, namely, a rectangular plot with a frontage of about 75 feet on the Grand Trunk Road. Construction was commenced on the 13th May 1948 and on the 27th May the plaintiffs instituted their suit which was for a perpetual injunction. On the 1st June 1948 a temporary injunction was issued to the defendants refraining them from further construction. The construc tion was, however, completed and it has been held by the Courts below that this was done in defiance of the injunction which was duly served. The cost incurred on the construction is alleged to be about Rs. 15,000 in addition to the cost of the engine of the flour mill.
The learned Sub‑Judge of the trial Court framed the following issues : -
(1) Are plaintiffs co‑sharers in the place in dispute ? (2) Have defendants been in possession of the place in dispute and since when, and what is the effect ? (3) On proof of issue No. (1) are not plaintiffs entitled to the injunction prayed for ? (4) Have a majority of the village proprietors consented to the construction in dispute and what is the effect on the suit ?
The plaintiffs' position as co‑sharers was clear. As to the second issue, the learned Sub‑Judge held that it had " not at all been proved ", although it seems sufficiently clear that at the time when the suit was instituted, the defendants were in exclusive possession of the plot in dispute, and it is reasonable to suppose that they had been in possession for some time before they commenced construction. The learned Sub‑Judge further held that only a few of the proprietors who have appeared in evidence for the defendants could be said to have consented to the construction. He‑ finally held that in the circumstances of case the plaintiffs were entitled to the injunction prayed for, namely, a perpetual injunction to restrain the defendants from building on the suit land and a mandatory injunction for demolition of the building already constructed by them. The defendants appealed and the learned Additional District judge confirmed the conclusions of the trial Court on all issues and dismissed their appeal. They have now come up to this Court in second appeal.
The findings of fact recorded by the lower appellate Court are binding upon this Court and cannot be questioned in second appeal. It must, therefore, be held to be settled that the defendants' possession of the plot in dispute is of recent origin and that their construction has been made without the consent of the great majority of the proprietors. Certain other matters of fact are relevant to the decision of this appeal. One is that besides the constructions put up by the defendants, there are no other constructions on the shamilat field No. 1838. In other words, the defendants are the first among the co‑sharers to build upon this land. Again, while the defendants had contended and had led some evidence to show that a partition of field No. 1838 had taken place among the co‑sharers, the evidence is to the effect that there were a few meetings attended only by a small minority of the co‑sharers in the field at which agreements were reached that the field be partitioned. The only proof in favour of the allegation that an actual partition was effected is contained in two sale‑deeds of specific plots out of this field, whose boundaries are. indicated by reference to other specific plots, and which have been proved by the vendees. It seems that at one stage of these proceedings, the local patwari was taking an active part in this matter and from the fact that he was subsequently dismissed, it would appear that this part was not by any mans highly scrupulous. Attached to the sale‑deeds of specific; plots mentioned above are plans showing the surrounding plots. It appears to me to be very probable that these plans and the specification of various plots have been manufactured in collusion with the aforesaid patwari. A partition of field No. 1838 in which there are said to be over 300 co‑sharers would be a lengthy and intricate proceeding before a series of revenue officers, and it is inconceivable that it should have been carried out in the manner stated by the defendants' witnesses, viz. at two or three meetings of a few proprietors only, and only one of which was attended by revenue officer, namely, the aforesaid patwari. Therefore, the story of an actual or notional partition must be excluded from consideration, but 'so much is clear, namely, that shares in this field had apparently been worked out by reference to the misl haqqiat of the villages involved, and thereafter co‑sharers had entered into sale and purchase of shares, by proper deeds, which were later embodied in the revenue records by proper mutations. A number of these deeds have been placed on the record, and it is evident from the prices paid that the intention of the purchasers was neither to allow the land to lie fallow and useless as it was, nor to bring it under cultivation for this would provide only a very poor return on the money invested, but to convert the land into an industrial area of the same kind as or, at any rate, of a type ancillary to, the great modern factory situated on the opposite side of the road. I think so much may be deduced not only from the prices paid but also from the rather feverish manner in which sales and purchases took place in the relevant ' period. At the same time, although it may be inferred that the ‑intention in the minds of the purchasers was to urbanise the land, and the vendors were also aware of this intention, it should be made clear that nowhere in the evidence is there any indication of any consent having been given by any of the co‑sharers to‑ commencement of construction before partition. A few witnesses for the defendants have indeed said that they do not object to the defendants' construction, but such evidence is obviously easy to procure once the litigation has started; what would 'have been significant for the purposes of resolving the present question would have been a declaration of intention by word or act at the time of the sale by certain of the co‑sharers of their shares that they had no objection to construction being commenced prior to partition.
This is so, because the land being part of the area of a village and forming part of the shamilat of that village, it must be assumed to be governed by the incidents of agricultural custom, which in this respect are laid down in Article 225 of Rattigant's Digest of Customary Law in the following words:----
" 225. In the absence of custom none of the proprietors can do anything which alters the condition of the joint property without the consent of all the co‑sharers."
It would seem to follow prima facie that if any one of the joint proprietors performs any act which has the effect of altering the condition of the joint property or any part of it, any one of the co‑sharers may sue to restrain the act. The matter is, however, by no means so simple, and a great deal of authority has been cited before me on the two sides which indicates that it is probably only in a rare case that the proposi tion‑stated above can now be applied without qualification. I propose to deal as briefly as possible with the judgments cited on the two sides, some of which appear to lay down propositions ire more or less direct conflict with others, and in consequence of this, and of the obvious fact that as the power in question is discretionary, and its exercise must depend very largely on the peculiar circumstances of each case, I propose to decide the case before me on the basis of the well‑known principles applying to the user of joint lands, which are subject to restrictive covenants.
On behalf of the respondents, eight cases have been cited in which demolition of structures put up on jointly‑owned lands by ; one or more of the co‑sharers was ordered. Six of these cases are from the Punjab and I notice them below in chronolo gical order. In Chan Singh v. Sadda Singh (73 P. R. 1882), a lane used by the village people generally had been encroached upon by construction of a chabutra. A particular circumstance was that by this construction, the lane had been narrowed to the inconvenience of persons using it, and this might perhaps be regarded as proof of material and substantial injury. The principle was accepted and applied that one of several co‑sharers has no right to take exclusive possession and to alter the condition of a part of the joint property without the consent of the co‑sharers. Chuhar Singh v. Dhaunkal Singh (74 P. R. 1885) is a case where a cattle‑trough was constructed on a public thorough are and its removal was ordered on the grounds that the encroachment was of recent date, that it had been made without the consent of the proprietors and that it interfered with the use of the land as intended by the proprietors. The last mentioned, circumstance would appear not to apply in the resent case. Next comes the case Ghasita Mal v. Goga (121 P. R. 1885) where the obstruction complained was by construc tion of a wall on common land and the principle stated above was accepted and applied, although there was a delay of one year in suing, that period having been taken up in remonstra nces, threats, negotiations and promises etc. Nlanji v. Ghulam Muhammad (I.'L. R. 1 Lab. 249 and again on appeal I. L. R. 2 Lab. 73) was a case relating to abadi land on. Which certain co‑sharers had put up structures claming exclusive right of ownership and possession. A prohibitory order had been obtained by the plaintiffs to stop construction and there was no laches. The appellate Bench in the Letters Patent considered it doubtful whether, the principle of postponing the remedy to partition could apply to abadi land particularly where this was already restricted by building to such an extent that the remaining land was insufficient for the common purposes of the village. It held expressly that where a suit was brought without delay and an injunction to restrain further construction was obtained, there was no necessity for showing that the plaintiff' had suffered or was likely to suffer material and substantial injury. The next case Kunj Lal v. ,Ratnji Lal (A. 1. R 1927 Lah. 416) related to encroachment on gorahdeh, viz., the portion of the village abadi land reserved for common purposes of the co‑proprietors ; in such cases, it is not necessary to prove special damage in a suit for removal of an encroachment. The last Punjab case is Inder Singh v. Bhana (A. I. R. 1938 Lab. 296). It related to encroachment on abadi land and was beard originally by a learned Single judge, who held that Article 225 of Rattigan's Digest laid down an eminently just and equitable principle, and further that if abadi land is appropriated by one of the, co‑proprietors, it is no consolation to the co‑sharers to be told that they can throw .the common land encroached upon into the hotchpot at the time of the partition, for partition or abadi land rarely takes place. On these grounds a permanent injunction was awarded to the plaintiffs restraining the defendant from building on the suit land, but it was set aside by an Special Bench in Letters Patent appeal which held that the plaintiffs had failed to establish their plea that the land was reserved for common purposes of the co‑sharers. The two Allahabad cases are Shanker Lal v. Pati Ram (A. I. R. 1937 All. 293) and Mst. Jamilunnisa v. Muhammad Zia (A. I. R. 1937 All 547), in both of which it was held that in a case of the kind here in question, if the offending structure is temporary in nature, the other co‑sharers cannot object, but, if it is permanent, it has the effect of changing the character of the possession very materially, to the complete ouster of the other co‑sharers, and if their consent has not been obtained, it cannot be allowed to remain. This simple principle has apparently not found favour with any other of the High Courts.
For the appellants, a much larger number of cases has been cited. The general principles enunciated in these cases may be conveniently reproduced from two of them. In Wazir Singh v. Mahtab Singh (108 P. R.1889) in a judgment remanding the case to the lower Court Plowden, J. observed as follows:
"It is not universally true that every co‑sharer in joint land is entitled to have actual joint possession of every portion of the joint land. It is a matter of every day experience that a co- sharer may take exclusive possession of a portion of shamilat and may keep exclusive possession of it for his own use until partition. It does not necessarily follow that he may alter the condi tion of the land by building upon it; but even this may be legitimate by usage or by express provision in the Settlement Record. The, commonest instance of the right of exclusive possession here mentioned occurs when a joint owner may break up and cultivate a portion of the shamilat and take the produce for his own benefit, often without any payment, sometimes upon payment of a quota of revenue in proportion to the area cultivated. The principle is precisely the same when a plot of shamilat is used as a bara or for any purpose other than cultivation. In neither case when one joint owner has legitimately appropriated the land to his own use, is another joint owner necessarily entitled to disturb the first joint owner in his possession. Generally speaking the first occupant is entitled to maintain his possession undisturbed until partition."
The second broad proposition may be extracted from a judgment of the Calcutta High Court published as Akshay Kumar Shaha v. Dhajagobinda Shaha (A. R. I. 1930 Cal. 341 at p. 343):‑
"Now, the view of the Allahabad High Court that one of seve ral joint owners of land is not entitled to erect a building upon the joint property without the consent of the other joint owners, notwithstanding that the erection of such building may cause no direct loss to the other joint owners, has been expressly dissented from in this Court in the case of * * * *, as not being con sistent with the line of decisions by this Court. In this Court, it has been held that there is no such broad proposition that one co‑owner is entitled to an injunction restraining another co‑owner from exceeding his rights absolutely and 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."
In most of these cases also, the view has been taken that the plaintiff, unless he can show material and substantial injury is post poned as regards his remedy until partition, and with respect to this, a passage occurring in another judgment cited for the, appel lants, namely, Dijendra Narain Roy v. Purnendu Narain Roy (5 I. C. 171 at p. 175), may be cited with advantage :‑
"A co‑tenant, who has thus spent money, (i.e. on erection of building) is not entitled to call upon his co‑sharers to compensate him for the expenditure, but he has a defensive equity which attaches to the land and passes to a purchaser, which is enforcible in the event of a partition or a distribution amongst the tenants in common of the proceeds of sale of the land."
I proceed now to consider the authorities cited in chronological order, firstly, those relating to the Punjab and then three cases from Calcutta. Ghulam Muhammad Khan v. Buta (187 P. R. 1889), was a case in which a belna had been constructed on the goradeh. The plaintiffs suit for an injunction was dismissed on the following grounds, namely, that he had raised no objection when the defendant commenced to build, that the erection caused no interference with the plaintiff's right of user of the goradeh, that the .defendant admitted that his occupation was of user only and was liable to be disturbed at partition, that the defendant asserted no individual right and that the user was strictly in accordance with the purposes of the reservation of the goradeh. Yet, the learned judges of the Punjab Chief Court thought it necessary to observe as follows:‑-
"We by no means intend to lay down a rule that a declaratory decree or an injunction regarding the treatment of joint property by a co‑sharer should be refused whenever it is possible for the plaintiff to secure his own rights by partition. Whether the decree should be granted or refused must depend on the special circumstances of each particular case.
One particular circumstance which inclined the learned judges in favour of refusing the relief claimed by the plaintiff was that it was easy for the plaintiff to have his two‑fifths share of the shamilat partitioned off, that he was a non‑resident and of a different tribe altogether from his co‑sharers and that it was better that he should put an end to all disputes by separating off his share than that he should be constantly disputing with his co‑sharers in Courts as to the lawfulness of their user 'of the common property. The facts in Hidayat Ali Khan v. Basit Ali Khan (54 P. R. 1892) were particularly strong in favour of the plaintiff's for the defendant had built over a larger area of the abadi than ire owned according to his share and the plaintiffs had objected and had recourse to the authorities without delay, in spite of which the defendant had continued his construction and completed it. The plaintiffs had mistakenly in the first instance approached the revenue authorities, who had no jurisdiction as the land was in the village abadi. Yet, an injunction was refused on the ground of absence of subs tantial injury, without which, it was said, a Court of equity would not grant relief, reliance being placed upon Nocury Lall v. Binda bun Chander (I. L. R. 8 Cal. 708) and Shamnugger Jute Factory Company v. Ram Narain Chatterji (I. L. R. 14 Cal. 189). In this case also, one of the learned judges thought it necessary to observe as follows:‑
"I would not have it supposed that I regard the defendant's conduct in occupying this common land in breach of an express rule on the subject in the Wajib‑ul‑arz, and, in spite of the remonstrances of the co‑owners,, with other than extreme dis favour. I should regret if our refusal of the particular remedy prayed for were regarded as a denial of justice absolutely, or if it should give other co‑owners of common property encouragement to take a similar course. I would only observe that the…
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