Pratt and Mitra, JJ.@mdashThe facts found in this case are as follows:--Plaintiffs and their aunt, the Defendant No. 1, are co-owners of mouza Rasulpore Fateh and have their respective houses upon the land and they occupy separate portions of the ramna or compound by mutual permission and for their individual convenience. A few months before suit the Defendant erected a wall upon a portion of the compound in her occupation and this the learned Judge held that she had no right to do, as it operated to restrain the Plaintiffs from passing over the land so built over and therefore he thought they wore entitled to have the wall demolished, even though it caused them no damage.
2. Though the view thus expressed by the learned Judge may perhaps he justified by the case of Najju Khan v. Imtiazuddin ILR (1895) 18 All. 115, it is not consistent with the decisions of this Court as expressed in a number of cases, of which we think it sufficient to cite only the three following, In Nocury Lall Chuckerbutty v. Brindabun Chunder Chuckerbutty ILR (1882) Calc. 708, it was held as follows:--"There is a 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." In the case of Shamnugger Jute Factory Co. v. Ram Narain Chatterjee ILR (1886) Cal. 189, it was laid down that there is no such broad proposition as 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. That case was cited and expressly followed in Joy Chunder Rukhit v. Bippro Churn Rukhit ILR (1880) Calc. 236.
3. In the case before us there appears to be no suggestion that the Defendant had been warned not to build the wall. No specific injury to the Plaintiffs has been found in the judgment of the learned Judge. In the plaint it was stated that the site of the wall was used as a passage for egress and ingress to the mosque, imambara and dwelling-house. Issue No. 6 expressly raises the question of obstruction to the Plaintiffs right-of-way. The Munsif states in his judgment that the evidence on behalf of the Plaintiffs was that they used to go to the mosque and imambara over the land where the wall has been erected and that the Defendant''s pleader contested the question with so little force that the Munsif considered he had fallen in with his own view, that this part of his case was weak and indefensible. Possibly the Appellant did not contest the Munsif''s finding on this point in the Appellate Court. However that may be, it is necessary for the Judge to consider the matter. Even if he thinks that the Plaintiffs had a way of necessity which has been obstructed, still it may not be necessary to remove the whole of the wall in order to afford the Plaintiffs a convenient passage.
4. The case must be remanded to the Lower Appellate Court for reconsideration in the light of the above observations. The Judge''s attention is drawn to the very imperfect decree of the Munsif, which he affirmed. That decree after setting forth the reliefs asked in the plaint, which included a prayer for partition, simply ordered that the suit be decreed. In a case like the present one it was of the utmost importance that the decree should state the precise nature of the relief granted. Costs of this appeal will abide the result.
5. We desire to state in conclusion that the parties being nearly related to each other would be well advised to settle the dispute amicably.
