- (1.) FIRST defendant in O.S. No. 548 of 1995 on the file of Principal District Munsif, Srivilliputhur is the appellant. The parties herein will be referred to according to the rank in the suit.
(2.) THE suit is to declare the III schedule property is part of II schedule property and to declare it is a common pathway and for a mandatory injunction directing the first defendant to remove the structure and also the borewell in the property. Schedule No. I of the properties are not in dispute. That property belonged to the plaintiffs. Defendants 2 to 8 are all neighbours and in between the property there is a pathway. First defendant is having properties on the western side of the plaintiff's and the second defendant and in between also the pathway runs. In the pathway the first defendant has put up some structures and also a borewell, which according to the plaintiff's is unauthorised and is causing interference for the use of the common pathway. It is said that the plaintiff's and the defendants are the beneficiaries of the common pathway and the first defendant is not entitled to put up structure nor he could make use of the pathway for any other purpose. The plaintiff's further alleged that during their absence, some time in March 1994, first defendant put up the construction of borewell and when demand was made to remove the same, he initially agreed, but subsequently refused to do so. Along with the plaint, the plaintiff's also attached a rougng plan showing the location of the respective properties of the plaintiff's and defendants and also the line of the common pathway. According to the appellant/first defendant, that portion of the pathway, that is the III schedule item in the plaint does not forms part of the II schedule and consequently it is not the part of common pathway. He also alleged that either side of the III schedule item was settled in his favour by his father and in front of his house he has laid a borewell in the month of June 1993 and neither the plaintiff's nor the defendants objected at that time. He also pleaded that there is acquiescence on the part of the plaintiff's and other defendants and consequently not entitled to the remedy of mandatory injunction. He further averred that the wall which he has put up will not cause any hindrance for the free access and it is only protecting the rights of all parties. He prays for the dismissal of the suit. The trial Court took oral and documentary evidence and marked Exs. A-1 to A-9 and B-1 to B-6. The Commissioner's report and plans were marked as Exs. C-1 to C-4, oral evidence consists of P.Ws. 1 and 2 and D.Ws. 1 and 2. On evaluating the entire evidence, the trial Court came to the conclusion that the third schedule item is Part of II schedule and is a common pathway. The trial Court further held that the first defendant has put up walls and borewell without obtaining the consent and approval of either the plaintiff's or the defendants and tike construction has affected the user of the pathway . The trial Court further held that as a co-sharer the first defendant is not entitled to change the character of the pathway nor he can exclude any portion of the same from being used by other co-sharers. Consequently, the mandatory injunction as prayed for was also granted. The plea of acquiescence also did not find favour with the trial Court. Aggrieved by the judgment, the appellant preferred A.S. No. 40 of 1998 on the file of Additional Subordinate Judge, Srivilliputhur. The lower appellate Court also found that III schedule item is part of II schedule and the construction made by the appellant is unauthorised and liable to be removed. Before the lower appellate Court, further argument was also put forward stating that the first defendant is only exercising his right of the co-sharer and if he acts as such and no detriment is caused to others, the mandatory injunction shall not be granted. The lower appellate Court rejected the contention and held that even though the first defendant exercises his right as co-sharer, he cannot exclude the other co-sharers from making use of the HI schedule item. The appeal was dismissed. It is against that judgment, the first defendant has preferred this appeal on the following substantial questions of law: "Whether the Courts below are correct in granting a decree for mandatory injunction, when the plaintiff's failed to establish any sufferings, loss, prejudice or inconvenience due to the laying of borewell and the HG wall while enjoying the common pathway, the second schedule property" "Whether the first defendant has not acquiesced while laying the borewell and the HG wall, when the plaintiff's and the defendants 2 to 8 are residing very nearby and they have not raised any objections". "Whether the Courts below are justified by restraining the first defendant being one of the co-owners from enjoying the common pathway to his maximum benefit without causing any hindrance or hardship to the other co-owners in using the common pathway the second schedule property"
(3.) COUNSEL for the appellant did not challenge the finding on point No. 1 entered by the lower appellate Court. In point No. 1 the lower appellate Court has found that III schedule item in the plaint is part of II schedule item and consequently it is a common pathway. This finding is not challenged. If so, the only question that arises for consideration is whether the first defendant is entitled to have a borewell or other structure in the common pathway. Reliance was placed by the learned counsel on the decision rendered by me in Krishnammal v. Periasamy (1997-I-M.L.J. 309). COUNSEL relied on the head note in the decision, which reads thus: "It is not permissible for a co-owner of co-sharer to change the mode of user of a common passage without the consent of other co-sharers. As between the co-sharers of a common passage such has the right to lay underground drains. In such a case there is no question of common passage being a servient tenement in respect of any of the promises of the co-owners. Every co-owner has the rights to make full use of the common passage. Even though a co-owner has the right to lay a new underground drains in the common passage, but such laying of new drains should not interfere with the existing drains and with the right of other co-owners of the passage. A person's right to drains his own premises by laying underground pipes in his own land is an incident of legal ownership and is not easement. The question of tenement arises when two tenements are involved, the dominant tenement to which the right belongs and the servient tenement on which the obligation is imposed. Such a situation does not arise between co-owners of common passage having right of drainage through it. When a right of drainage is given to the co-owners by deed of partition to the erstwhile co-owners, it is a right to drain the house and premises specified therein and is a joint right of drainage by the underground process. Moreover, such right is not restricted only to the buildings existing at the time of partition and the co-sharers have got the right to lay new underground drain during the common passage for the new buildings which may be erected on the premises provided there is no restriction in the deed of partition against construction of a new building. So, it is therefore clear that when a common passage belongs to both the plaintiff and the defendant, there is no question of any one party having an easement right over the same. It is a joint property and any co-owner has to use such property reasonably in the sense that his user does not amount to ouster of other co-owners. So co-owner can complain that the use of the common passage by the other causes an unnecessary or additional burden upon the common passage. A co-owner carrying his carts, bullocks and ploughs through the joint property cannot be said to have caused unnecessary inconvenience to the other co-owner. In S.B. Katiyaris Easements & Licences ? 11th edition (1993) at pages 222, 223, the learned author has extracted with approval, a passage from the decision reported in Subbiah Goundou v. Ramaswamy Goundan , A.I.R. 1973 Mad. 42 at 45=(1992) 85 L.W. 659 wherein it was held thus: "When co-owners at the time of partition set apart a portion of the common property to be used as common for the beneficial enjoyment of their respective shares, that involves a dedication. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time, causing any injury or detriment to the other co-owners. It is for such a co-owner to decide in what way he could so use the common property to his maximum advantage. It is not for the other co-owners to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the other co-owners or affect their rights or in any way weaken, damage or injure the common property. Such co-owners are not entitled to prevent the other co-owner from using the common property in the way most beneficial to him Little lower down, the learned Author said as follows : "The principle underlying the enjoyment of common property is that one co-owner can use the common property to his maximum advantage, subject, of course to the rights of the other co-owner not being any way materially interfered with and without damaging or weakening the common property". "If this is the law regarding enjoyment of common property, and when there is an allegation in the plaint and counter allegation in the written statement, a finding in that regard was necessary. In the trial Court judgment, there is no finding as to how far the construction of a septic tank beneath the ground level the common lane will affect the plaintiff's right of enjoyment of the lane. So long as there is no finding the mandatory injunction should not have been granted. A decree for mandatory injunction is granted only for the reason that the plaintiff and defendant are co-owners over the pathway. That by itself is not sufficient to grant a decree for mandatory injunction. The lower appellate Court also held that since the parties are co-owners, without the consent of the other co-owner, no construction could be had in the common pathway. The said approach is also not correct. Granting of mandatory injunction must depend upon the injury caused to the common pathway and how far the user is affected . For the said purpose, the decisions of the Courts below require interference". I do not find that this decision will have any application to the facts of the case. By putting a borewell in the common pathway, the other co-sharers are excluded from making use of the property which is a common pathway and the first defendant is making the use of that portion of the property to his exclusive use. He is also changing the user by converting as a wall. It is also come out in evidence that by putting up other construction, the access to the property is also affected even though the appellant has a claim that putting up a wall has only protected the rights of all co-sharers, and mat argument did not find favour either with the trial Court or by the lower appellate Court. The plaintiff's have a definite case that by putting up the wall on the western side of the property, the first defendant has prevented the plaintiff's and other defendants from going to the western side of the property The said allegation of the plaintiff's is found to be true by the Courts below. A feeble argument was put forward by the learned counsel for the appellant that the other co-sharers acquiesced by their silence, when none objected when the wall and the borewell were constructed. Acquiescence is a part of estoppel and the same has to be specifically pleaded and proved. I do not find any specific pleading regarding the plea of acquiescence. It is the case of the plaintiff's that when they were out of station, the first defendant has put up the borewell and the wall and immediately after he came to station, he demanded the first defendant to remove the same. That case of the plaintiff's was accepted by the Courts below. The principle of estoppel also may not have any application when the first defendant is also aware as to his legal rights. The co-sharer is not entitled to make use of the common property for his own use. Merely because another co-sharer did not object will not give a cause of action to the first defendant and contend that non objecting co-sharer shall not raise any objection if it affects his legal rights. Knowing fully well that the co-sharers will be affected by the construction and if the first defendant has put up those construction, it can only be assumed that he has done so at his own risk. ;