Bapna, J. - (1.) THIS is a second appeal by the defendant in a suit for injunction.
(2.) THE respondents Roshanlal and Manohar Singh sued the appellant Nathulal on 7th June 1944 on the allegations that the two plaintiffs and the defendants as also the pro forma defendant Malam Singh owned houses having a common approach through Bansarwali Pol at Udaipur and that between the houses of the parties there was a chowk, that is, an open space of land, which was the joint property of the parties. It was alleged that the defendant Nathulal while reconstructing his house was encroaching upon the joint chowk to the extent of a strip of land 2 feet wide and 13 feet long and further the defendant wanted to open a door on a joint chabutary situated on the outer side of the Pol. On a prayer by the plaintiffs, a temporary injunction was granted restraining the defendant from making any construction in the chowk alleged to be joint between the parties. THE defendant pleaded that whatever construction he had been making was on the land of which he was the sole owner. As the suit proceeded the defendant made certain further constructions and these were challenged by an amendment of the plaint on 18th July 1945. It was alleged by this amendment that the defendant had inserted three brackets and constructed a ros over them in the northern wall of his house encroaching upon the joint chowk. This ros was said to be 2 feet wide and 10 feet in length. It was stated that this construction was started on the 17th of July 1945 although the defendant had been prevented by an injunction to make any new construction on the joint chowk. It was alleged that this construction would adversely affect the enjoyment of their other property. THE defendant also began constructing a staircase on the western, side of his house during the course of the suit but was stopped from completing the same by a temporary injunction. In respect of the brackets and the ros, the defendant's reply was that this had been constructed overhanging a strip of land where his chabutaries existed formerly and which was the sole property of the defendant. It was also stated that although the chabutaries did not exist they would be constructed later on. It appears that during the course of the suit the plaintiffs did not insist on their allegation that the defendant in making the construction of his house had encroached upon any joint land and the case came to be tried on the other allegations only. THE trial court held that the portion of the land marked ABC in Ex. P-7 which was the plan of the site, was in defendant's occupation, there being chabutaries prior to the dismantling of the house and that these chabutaries belonged to the predecessor-in-title of the defendant, and therefore the defendant could not be stopped from constructing the brackets and the ros on the northern side of his wall. As regards the stair-case constructed on the western side of the house and marked as ST in the said plan, the court held that this was an encroachment on the joint land and should be removed. As regards encroachment on the chabutary outside the Pol the court held that some-portion of the chabutary belonged to the defendant while another portion was joint; but the plaintiff had failed to prove that the encroachment was on the joint portion. THE court, therefore, passed a decree for demolition of the stair-case and issued an injunction restraining the defendant from making an encroachment on the joint chowk (beyond the pre-existing chabutaries) but dismissed the suit with respect to the brackets end the ros and the alleged encroachment on the chabutary outside the Pol. The defendant filed an appeal as regards the mandatory injunction in respect of the stair-case, while the plaintiffs filed an appeal regarding the dismissal of their claim for injunction in respect of the brackets and ros. The learned District Judge came to the conclusion that the land marked ABC in the plan was also a portion of the joint chowk and he accordingly accepted the plaintiffs' appeal and directed demolition of the brackets and the ros. The defendant's appeal regarding maintenance of the stair-case was dismissed. The defendant Nathulal has come up in appeal. Learned counsel for the appellant wanted to argue that the portion of the land marked ABC in Ex. P-7 was the exclusive property of the defendant and relied upon the statement of Bhurelal D. W. 5 as also the deeds of transfer in favour of the predecessors-in-title of the defendant. These were Ex. D-2 and Ex. D-3 of Pratham Chet Sudi 10, Svt. 1898 and Baisakh Sudi 8, Svt. 1899 respectively. These documents and the oral evidence led by the defendant were duly considered by the learned District Judge and he has given elaborate reasons why evidence relied upon by the defendant was unreliable and it is unnecessary to repeat those arguments here. It is sufficient to say that at the time when the defendant Nathulal acquired this property in Svt. 1962 a plan of the property transferred was prepared and produced in the Registration Department a copy whereof is Ex. P-8 and in this plan the land ABC does not form part of the property sold and is mentioned as a portion of the chowk. The dimensions of the property purchased are not mentioned in the sale-deed, but the Registrar according to the practise in vogue in Mewar mentioned this in the note of registration and that endorsement excludes the portion ABC in the description of the property transferred. Again, if the evidence of Bhurelal and the two documents of Svt. 1898 and Svt. 1899 were to be accepted as correct, no portion of the open land to the north of the defendant's house would be joint chowk while the defendant himself in reply has said that there is a joint chowk, his plea being that the portion where he had constructed was not included in that joint chowk. Learned counsel for the respondents argued that the finding as to whether a portion marked ABC in Ex. P-7 was a joint chowk was a finding of fact and not liable to be challenged in second appeal. This would depend upon the state of law in Mewar on the date of the institution of the suit. Since, however, I agree with the learned District Judge in his finding, it is not necessary to consider this aspect of the argument of learned counsel for the respondent. Learned counsel for the appellant argued that even if the portion marked ABC in Ex. P-7 were to be held to be a portion of the joint chowk still the court should not direct demolition of the brackets and ros as the plaintiffs have not alleged or proved that their rights of the user of the chowk are in any way affected by his construction and that the balance of convenience would be entirely in the defendant's favour. Learned counsel for the appellant cited Khiaram vs. Tahilram [a. I. R. 1947 Sind 134] where the following observation of the Calcutta High Court in Shamnuggar Jute Factory vs. Ram Narain [ I. L. R. XIV Calcutta 189 ] were cited with approval: - "in granting or withholding an injunction a Court should exercise a Judicial discretion, and should weigh the amount of substantial mischief done or threatened to the plaintiff, and compare it with that. which the injunction, if granted, would inflict upon the defendant. " In that case, however, the suit for injunction was filed nine years after the causes of action had arisen and on the merits the observations were : - "there being no assertion of hostile title, no exclusion or ouster, no destruction of property, no conversion, and no evidence that the defendants have discharged into the drain more dirty water than they were entitled to do, we cannot see how the appellant can succeed in obtaining the relief which he has claimed. " The other case cited was Chhedilal vs. Chhotelal [a. I. R. 1951 Allahabad 199]. In that case the entire case law was reviewed and in paragraph 25 the result of the discussion of the authorities was incorporated and it is thus: - "as a result: of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. " With great respect I agree with the above observations. Learned counsel next relied upon Manilal vs. Nanubhai [ A. I. R. 1947 Bombay 394] where Lokur, J. cited with approval the observations in Akshay Kumar vs. Bhajagobinda [ A. I. R. 1930 Calcutta 341]: - "even the sole occupation of the common property by itself is not ouster, unless it is attended by an assertion of a hostile title, and unless ouster causes some defect difficulty or inconvenience to other co-owners, the court will exercise a discretion in not granting a perpetual injunction. " In the Bombay case the joint property consisted of a lane 48 feet long X 5 feet wide and the defendant had constructed a balcony projecting over the lane and the court did not order demolition. Learned counsel urged that in the present case the dimensions of the chowk were far greater than in the Bombay case and therefore the court should not direct the demo-lition of the balcony. On the facts, it was held in the Bombay case that the joint land was a lane used only for the purpose of passage to a latrine and the construction did not in any way interfere with the user of the lane as the balcony was built at a height of more than 14 feet above the ground. In the present case the construction was made by the defendant overhanging the joint chowk while the suit for injunction restraining the defendant from making any encroachment on the chowk had already been instituted. All these cases, therefore, where the suit was brought for demolition long after the construction had been made, are easily distinguishable. As aforesaid, in the Sind case, the suit for mandatory injunction was brought after nine years of the construction. Cases relating to agricultural land or large parcels of open land where one of the joint owners may have made some construction on a portion of that land are also distinguishable as on partition the portion occupied by the joint owner would be kept in his share. The earlier cases relating to rights of co-sharers on which the observations in some of the later cases are based related to agricultural land and a co-sharer's occupation of a plot of land was held by itself insufficient for the foundation of a claim for injunction or ejectment. Reference may be made to Watson & Co. vs. Ramchund [ I. L. R. XVIII Calcutta 10 P. C. ] and Midnapur Zamindari Co. vs. Kumar Naresh Narayan [ A. I. R. 1924 P. C. 144 ]. The Allahabad case dealt with two cases in one of which it was observed that the plaintiffs had come to court with false allegations and it was found that the defendants had right to build and that the plaintiffs did not protest at the time when the construction was going on. The injunction was, therefore, refused. In the second case the suit was brought more than three years after the building had been completed and the relief for injunction was disallowed. The facts of the present case are entirely different. In this case the defendant built the brackets and the ros at a time when a suit for injunction restraining him to make an encroachment on the joint chowk had been pending and the plaintiffs on the very next day of the defendant's attempt to construct made an amendment of the plaint asking specifically for mandatory injunction. The land on which the construction is made is not agricultural land and is not such which can be partitioned. The situation of the joint chowk in this case is in the crowded town of Udaipur where open spaces are necessary, not only for rights of way and use on ceremonial occasions but also in order to supply fresh air to the occupiers of the neighbouring houses. The defendant has not shown what equitable considerations arise in his favour. In the present case, therefore, the learned District Judge was right in issuing a mandatory injunction for the demolition of the construction (viz. the brackets and the ros) made by the defendant at his own risk, during the pendency of the suit for injunction. This appeal fails and is dismissed with costs. . ;