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TMI Blog1977 (12) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the plaintiff-respondents' case the defendant appellant had started making constructions on khata No. 59 area 42 bighas 15 biswas which is the joint property of the parties to the suit, without the consent of the plaintiff-respondents and despite their protests. According to them they lodged a report to the police when the defendant respondent started laying the foundations on 20-1-1960. Despite their protests when the defendants started making constructions on 1-2-68 the plaintiffs filed the suit on 4-2-1966 praying for a mandatory injunction for the removal of the constructions on the land in suit. 4. On 4-2-1966 an application was made on behalf of the plaintiff-respondents praying that an interim injunction should be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also been found to be without any basis and the constructions have been held to be new. 8. The trial court found that the plaintiff-respondents had their house immediately adjacent to the place where the defendant appellant was making his constructions on the joint land of the parties. It further held that as the plaintiff respondents' house was adjacent to the area where the defendant appellant was making his constructions, this land was likely to go to the plaintiff-respondents' share in the event of a partition of the land between the parties. It also observed that one of the accepted rules of partition is that when it comes to allotment of land, it should be allotted to a party which would be of maximum use to it considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Ouah Chief Court and of the Allahabad High Court the Full Bench observed as follows : (At p. 204 of AIR). 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case a decree for a mandatory injunction requiring the removal of constructions should be granted or not. 11. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at the earliest or, waited till the constructions had been completed. In the first case injunction would normally be issued whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that be their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of the constructions to believe that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses are being constructed thereon. With the mounting pressure of population more accommodation is needed. It may be that in the peculiar facts of a case it may be found that it is in the greater social interest that agricultural land be diverted to providing accommodation to the people. The mere fact that the nature of the land is being altered may not be treated as a decisive factor for determining whether a perpetual injunction should be granted requiring the defendant to demolish the constructions which he had made or to restrain him from making further constructions despite objections of co-owners of the land. The plea of the defendant-appellant that the land has lost its character as agricultural land and has become abadi site, may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Court, however, recorded no finding in this regard. Its view was that the defendant-appellant had no right to make the constructions against the wishes of the plaintiff respondents and as they had instituted a suit as soon as possible after the constructions were started, they were entitled to a decree in their favour. In other words, the lower appellate Court has found that the plaintiff-respondents were not required to show any special damage. I am of the view that in the peculiar fads of this case it is unnecessary to determine whether plaintiff in a suit for demolition of constructions made over joint land, should prove special damage, specially as the constructions are incomplete and their value is only about ₹ 500/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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