G. N. SABHAHIT, J. ( 1 ) THIS appeal by defendant 1 is directed against the judgment and decree dated 18-11-1978 passed by the II Addl. Civil judge, Belgaum in RA No. 80 of 1977, on his file, dismissing the appeal, on confirming the judgment and decree dt. 30-3-1977 passed by the Prl. Munsiff, Belgaum in OS no. 109 of 1973, on his file, decreeing the suit of the plaintiffs with costs. ( 2 ) THE plaintiffs instituted a suit for mandatory injunction as well as for permanent injunction against the defendants. They averred that the plaintiffs and the defendants jointly purchased 6 guntas and 3 annas of plot bearing Sy. No. 73/2/12/ 1g of Angol village, under registered sale deed dt. 22-1 1970 and, thereafter, jointly constructed a building consisting of eight residential blocks after obtaining necessary permission of the Belgaum Municipal council. All parties contributed equally for the construction of the building. Plaintiffs and defendants are thus the co-owners of the entire building consisting of eight blocks and the open space round about the building. All the parties, however are residing separately in different blocks though there is no actual partition among them. Defendant 1 is in possession of Block No. 8 on the eastern side. An area of 15 feet open space is left east-west adjacent to the first defendant's block. Likewise, an area of 60' in width has been left north-south on the northern side of the building. An area of 5' in width is left on the back side of the building. So also, an area of 5' is left on the western side of the building. Defendant 1, however, unauthorisedly constructed a kitchen and room adjacent to her building in the open space. The plaintiffs further averred that the open space was jointly owned and possessed by the plaintiffs and the defendants. The construction was put up without the consent of the other co owners. Moreover, defendant 1 claimed to be the absolute owner of her block as well as the open space OB which she made the alleged encroachment. Thus, it is the case of the plaintiffs that defendant I has no fight to erect any structure on the open space which is jointly owned and possessed by the plaintiffs and the defendants. Moreover, defendant 1 claimed to be the absolute owner of her block as well as the open space OB which she made the alleged encroachment. Thus, it is the case of the plaintiffs that defendant I has no fight to erect any structure on the open space which is jointly owned and possessed by the plaintiffs and the defendants. They, alternatively, contended that even assuming that eight blocks are owned independently by different sharers, there has to be a way east-west connecting the same to the existing public road on the eastern side to have an approach to all the blocks. Defendant 1 has reduced the extent of the open space. She has violated the agreement between the parties to keep the open space round about the building for common enjoyment of all the block owners. Besides, during the pendency of the case, defendant 1, with mala fide intention, hurriedly constructed the kitchen and room on the open space. The construction is unauthorised, illegal and, therefore, is liable to be demolished. Hence, the plaintiffs instituted the suit for mandatory and prohibitory injunction against defendant 1. ( 3 ) DEFENDANT 1 contested the suit. She contended that after that building was completed and completion certificate was obtained from the Municipality, there has been a partition among the parties and each one of them is in exclusive possession of his or her independent block. Plaintiff's made an application to the Municipality on 13 4 1972 requesting for the entry of their names as full owners of the respective blocks separately in the Muni cipal Records and also to assess the tax separately. Defendant 1 further contended that plaintiffs and defendants were no longer co-owners of the blocks in question along with the area adjoining the blocks. According to her, the open space in dispute is not jointly owned and possessed by plaimiffs and defendants. She further contended that plaintiffs did not raise any objection when the construction was started. Plaintiffs themselves constructed 'katta' in the open space in front of their blocks and converted the front space as garden. Hence, they had no right to obtain the injunction as sought for against her. ( 4 ) ON these pleadings, the trial Court raisad the following issues as arising for consideration in the trial : x x x x ( 5 ) THE trial Court, appreciating the evidence on record, answered Issues Nos. Hence, they had no right to obtain the injunction as sought for against her. ( 4 ) ON these pleadings, the trial Court raisad the following issues as arising for consideration in the trial : x x x x ( 5 ) THE trial Court, appreciating the evidence on record, answered Issues Nos. 1 to 6 in the affirmative and, in that view, the trial Court decreed the suit of the plaintiffs as prayed for with costs. Aggrieved by the said judgment and decree, defendant 1 went up in appeal before the ii Addl. Civil Judge, Belgaum, in RA No. 80 of 1977, on his file, and the learned civil Judge, in the course of his judgment, raised the following points as arising for his consideration, from the arguments addressed before him, in the appeal: x x ( 6 ) THE learned Civil Judge, reassessing the evidence on record, answered Points nos. i, 3, 4 and 5 in the affirmative. He answered Points Nos. 2, 6 and 7 in the negative and, in that view, he dismissed the appeal, confirming the judgment and decree of the trial Court. Aggrieved by the same, defendant 1 has come up with the above second appeal before this Court. ( 7 ) THE learned Advocate appearing for the appellant strenuously urged before me that the Courts below conspicuosly ignored an important aspect in the case, namely, that the plaintiffs stood by and allowed defendant 1 to pur up the structure and that it is only when she completed the structure that they rushed to the Court with a prayer for mandatory injunction to demolish it. He submitted that even assuming that the open space was still of joint ownership, the plaintiffs, who are the co owners , having allowed her to put up the structure adjoining her block, could not now ask by mandatory injunction to demolish the same. He submitted that they waived their right, if at all, by standing by and allowing her to put up the construction. Since that aspect was never considered by the Courts below, he submitted that the appeal was entitled to succeed. ( 8 ) AS against that, the learned Advocate appearing for the respondents/plaintiffs argued supporting the judgment and decree of the trial Court, confirmed by the 1st Appellate Court. Since that aspect was never considered by the Courts below, he submitted that the appeal was entitled to succeed. ( 8 ) AS against that, the learned Advocate appearing for the respondents/plaintiffs argued supporting the judgment and decree of the trial Court, confirmed by the 1st Appellate Court. ( 9 ) THE sole question, therefore, that arises for my consideration in the present appeal is: Whether the Courts below were justified in issuing mandatory injunction to demolish the building on the facts and circumstances of the present case ?' ( 10 ) BEFORE I proceed to consider the facts on record, I would briefly recall the law on the point. ( 11 ) THE House of Lords, in Redland bricks Ltd. , v. Morris (1), had occasion to consider the general principles on which mandatory injunction is issued. Lord upjohn, discussing the aspect at page 665 of the reported case and recalling the general principles, has observed ;". . . . The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. Every case must depend essentially upon its own particular circumstances any general principles for its application can only be laid down in the most general terms : 1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not suffscient to say 'timeo'. (Attorney-General for the Dominion of canada v. Ritchie Contracting Supply Co. , (1919) AC 999, 1005 PC ). It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly. 2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity, it has nothing to do with Lord Cairns' Act or sheifer's case (1895) 1 Ch, 287. 3. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly. 2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity, it has nothing to do with Lord Cairns' Act or sheifer's case (1895) 1 Ch, 287. 3. Unlike the case where a negative injunction is granted to prevent the continuance or recurrence of a wrongful act, the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account : (a) Where the defendant has acted without regard to bis neighbour's rights or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour, he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. As illustrative of this, see Woodhouse v. Newry Navigation Co. , (1898) 1 IR 161 ; (b) but where the defendant has acted reasonably though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for ha has his action at law and all his consequential remedies in equity, x x x 4. If in the exercise of its discretion the Court decided that it is a proper case to grant a mandatory injunction, then the Court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instruc tions". ( 12 ) JOHN George Woodroffe, in his tagore Law Lectures on the Law relating to Injunctions, 6th Edn,, speaking about the issue of mandatory Injunctions, adds :". . . . It seems, however, in this country (India) that, subject to the provisions of s. 57 of the Specific Relief Act, the principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort. In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Where there is one definite thing to be done about which there can be no doubt the Court will grant a mandatory Injunction. There is no real distinction as to the conditions under which mandatory and other Injunctions are granted. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. (Ulagappan ambalam v. Chidambaram Chetty, 29 mad. 497 (1906); Ravuru Punnamma v. Lakkaraju Venkatasubba Rao, AIR 1953 mad. 456 ). The Court will seldom Interfere to pull down a building which has been erected without complaint, benode Coomaree Dossee v. Soudaminey dossee, 16 Cal. 252) and unless very serious damage would otherwise result will not order a building already finished to be pulled down. But in a more recent Madras case it was held that a landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected to such building but has also taken legal steps to prevent it, (29 mad. 497 ). . . . ". But in a more recent Madras case it was held that a landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected to such building but has also taken legal steps to prevent it, (29 mad. 497 ). . . . ". ( 13 ) IN Cheddilal v. Chhotylal (2), a full Bench of the Allahabad High Court, considering the aspect of issuance of mandatory injunction, has held that the Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the Court to lay down inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. In Puranchand Santlal v. Nityanand (3), the High Court of Punjab has ruled thus :"a co owner is not entitled to an Injunction restraining another co-owner from exercising his rights in the common property absolutely and simply on the ground of his co ownership and without reference to the amount of damage to be sustained by the one side or the other from the granting or the withholding of the injunction. While 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 of demolition and injunction will be granted or with held by the Court according as the circumstances established In the case justify". In Chhaganlal v. Kesarlul (4), it is laid down that if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given to the other co-owner is the mandatory injunction for restoration of the joint property to its original condition by the demolition of the new construction. In Chhaganlal v. Kesarlul (4), it is laid down that if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given to the other co-owner is the mandatory injunction for restoration of the joint property to its original condition by the demolition of the new construction. In Moolchand v. Chhoga (5), it is laid down that a mandatopy injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying cir-cumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescene in the act complained of or laches, after the act is done. In Naraindas v. Atmaram (6), it is held that a suit for mandatory injunction brought only after defendant constructed a pucca gate, was not maintainable. In Prabhoo v. Doodhnath (7), it is observed thus :"one co-owner has not in law any right to appropriate land to himself out of joint land against the consent of his co-owners. High handed action by one co-owner cannot be encouraged by courts of law. Unless some special equity is shown in favour of the defendant in a suit for demolition of constructions, which are in the process of being made by him without the consent of the co owners, a decree for demolition should not be refused especially when the co-owners have come to Court at the earliest. 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 by their conduct in not objecting at the earliest stage, the joint co-owners bad induced the maker of constructions to believe that he could make it, and in doing so spent money and effort". This Court, speaking in this aspect, in the case Mirza Sattar Baig v. Tajuddin (8), has observed thus : "the issuance of a mandatory injunction is discretionary and rests entirely in the discretion of the Court. It is not in every case that the plaintiff who complains against an injury caused to his property by the defendant can obtain a decree for mandatory injunction. Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorised construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages". ( 14 ) WITH these salutary principles of law in mind, I would presently proceed to appreciate the facts of the present case on record. ( 15 ) THE plaintiffs have averred thus in para 7 of the plaint :"now the defendant No. 1 has started constructing a room on the northern side of the eastern most block and a kitchen on the southern side of thd said block, measuring 13' by 15' and 4' by 10' respectively and the construction has come up to the plinth level on the open space referred to above, without the consent of the plaintiff and the other co-owners". ( 16 ) THUS, an attempt is made to make it appear that the plaintiffs have approached the Court quite early. The suit was instituted on 9-3-1973. The contending defendant volunteered to appear and filed her written statement on 12-3-1973 itself. Therein, she has specifically averred in para 12 of her written statement thus ?"it is false to say that this defendant has started constructing a room on the northern side of the eastern most block and a kitchen on the southern side of the said block measuring 13' by 15' and 4' by 10' respectively and that the construction has come up to the plinth level on the open space referred to In para 7. The construction work is complete long back and nothing remains to be constructed. The plaintiffs did not raise any objection when the construction was started and now after the construction work is complete they have filed this false suit". ( 17 ) THUS, defendant 1 has specifically denied that when the plaintiffs approached the Court with the suit for injunction, the construction was just started and just plinth was laid. ( 18 ) IT is of interest to note that along with the plaint, the plaintiff presented an application for temporary injunction to restrain defendant 1 from proceeding with the construction. Since the defendant appeared and filed her written statement stating that the building was already complete, the application for temporary injunction was never pressed. ( 19 ) IT may also be noted that Ex. D 3 is the completion certificate issued by the municipal Commr. It is dt. 26-4-1973 and the application for permission is applied on 24-10-1972 as per Ex. D 4. These further probabalise that the construction was complete at the time when the suit was instituted. ( 20 ) IN fact, the plaintiffs have not taken any steps to get a commissioner appointed to examine the stage at which the building construction stood when the suit was instituted. They have not examined any witness to show as to the stage at which the construction was at the time of institution of the suit. The fact that they did not press the application for temporary injunction and they did not take steps to show that there was substance in the plaint averments, would go to show that in all probability, the building was completed when the plaintiffs approached the court. That being so, even assuming that defendant 1, being a co-owner, constructed a building in the open space, it is obvious that the co-owners stood by and allowed her to construct making her believe that she had right to construct and thereby waived their rights. As pointed out in the different rulings, cited above, including the ruling of this Court, unless the plaintiffs are prompt and diligent in exercising their rights, they cannot be granted the discretionary remedy of mandatory injunction. ( 21 ) IT is on record that the construction cost nearly Rs. 5,000 in the year 1973. As pointed out in the different rulings, cited above, including the ruling of this Court, unless the plaintiffs are prompt and diligent in exercising their rights, they cannot be granted the discretionary remedy of mandatory injunction. ( 21 ) IT is on record that the construction cost nearly Rs. 5,000 in the year 1973. It is a matter of common knowledge that there has been high inflation in society and the present worth of the building would be easily nearly Rs. 50,000. That is also a factor to be taken into consideration while ordering demolition of the structure. ( 22 ) IT is no doubt true that a specific case is made in the plaint that the open space is reserved for common use of all the block owner as path. But, unfortunately, there is no evidence adduced in that behalf, except the interested say of the plaintiffs, one of whom is examined as PW 1. ( 23 ) AS against that, defendant 1 in her evidence has stated that she has left about 5 feet for passage for the use of the different occupiers of the blocks and that is not disputed even by PW 1 in the course of her evidence. That being so, the facts of this case would not put the case in the exceptional category, e. g. , that the construction is on the passage causing inconvenience every moment of the day and night. ( 24 ) IT is nobody's case that the open space adjoining the blocks cannot be made the subject-matter of partition. Hence, that way also, the facts of the case would not constitute any exception to the general rule that the plaintiffs who waited till the completion of the construction would not normally be entitled to a mandatory injunction. ( 25 ) IN the result, therefore, I am of the considered view that the Courts below weie not at all justified in directing issuance of mandatory injunction without considering the law on the point and ignoring that the plaintiffs stood by and induced defendant 1 that she had the right to construct and approached the Court only after the construction was complete. Hence, I am constrained to allow the appeal and I allow the same, set aside the judgments and decrees of the Courts below and direct that the suit of the plaintiffs for mandatory injunction as also for permanent injunction be dismissed. On the peculiar facts of the case, I direct the parties to bear their respective costs of the-proceeding throughout. --- *** --- .