Judgment :- ABDUL HADI, J. 1. These appeals are connected, arising from the same suit O.S. No. 3652 of 1984 on the file of IV Assistant Judge, City Civil Court, Madras. A.S. No. 14 of 1987 is by the defendant in the said suit. A.S. No. 643 of 1987 is by the two plaintiffs in the said suit. The said suit is for partition of the plaintiffs 2/3 share in the suit vacant land, for a mandatory injunction directing the defendant to demolish the superstructure put up by him in the said vacant land and for a permanent injunction restraining the defendant from using the rear portion of the said vacant land in any manner or from putting up any structure thereon or from preventing the plaintiffs from entering the suit land. 2. The Court below has granted preliminary decree for partition as prayed for, and regarding the mandatory injunction prayed for, the decree that has been granted is that” to the extent necessary”, (Tamil) for the plaintiffs to make use of their 2/3 share, the superstructure built up by the defendant should be demolished. Regarding the abovesaid prohibitory injunction prayed for the Court below has granted the injunction, pending passing of final decree, prohibiting the defendant from putting up any further construction or changing the construction already made. 3. Now the dispute in this appeal is only with reference to the mandatory injunction-decree granted as stated above. The plaintiffs have preferred their appeal on the ground that the abovesaid mandatory decree granted is vague and unworkable and the Court below ought to have directed total demolition of the construction made by the defendant. On the other hand, the appeal by the defendant is against the decree of mandatory injunction as granted by the trial court. 4. Admittedly, the defendants 1/3 undivided share in the abovesaid suit vacant land originally belonged to the sister of the plaintiffs and the defendant purchased the same from her by sale deed Ex. A.1 dated 30-5-1977. 5. With this background, now the relevant allegations in the pleadings of the parties may be seen. The plaint stated a follows:— By the abovesaid sale deed dated 30-5-1977 the sister of the plaintiffs has directed the defendant to have a partition effected between him and the plaintiffs. A.1 dated 30-5-1977. 5. With this background, now the relevant allegations in the pleadings of the parties may be seen. The plaint stated a follows:— By the abovesaid sale deed dated 30-5-1977 the sister of the plaintiffs has directed the defendant to have a partition effected between him and the plaintiffs. Though the defendant has undertaken to have a division, he has not done so in spite of Lawyers notice dated 16-6-1977 of the plaintiffs, as will be clear by the defendants reply dated 16-7-1977. Even thereafter the plaintiffs have been frequently demanding the defendant to effect a partition, but the defendant did not do so. The defendant has unauthorisedly started putting up a construction in the front portion of the suit property leaving a very narrow passage of about 3 leading to the rear portion. The defendant is preventing the rear portion. The defendant is preventing the plaintiffs from entering into the suit property. The defendant has also put up a door in the front which he keeps locked always. The defendant is bound to remove the superstructure an the door put up. Hence, the abovesaid mandatory injunction and prohibitory injunction are sought for. The defendant is still proceeding with further construction by putting up one more floor. The plaintiffs have already filed a suit for partition which was numbered as O.S. No. 2984 of 1984 and was posted to 23-4-1984. However, the said suit was withdrawn with liberty to file a fresh suit. 6. The relevant allegations in the written statement are as follows:— The allegations regarding the abovesaid alleged direction in the sale seed dated 30-5-1987 and regarding the alleged undertaking by the defendant to have a division, are not admitted. The abovesaid sale deed in favour of the defendant was after notice to the plaintiffs giving them option to purchase their sisters share. This is evidenced by the letter dated 20-12-1976 addressed to the plaintiffs. The plaintiffs not having exercised the ir right to purchase the undivided share of the defendants vendor., began to question her right to sell the property and treated this defendants possession as trespass, harassing this defendant with a view a coerce and compel this defendant to come to terms with the plaintiffs. The plaintiffs not having exercised the ir right to purchase the undivided share of the defendants vendor., began to question her right to sell the property and treated this defendants possession as trespass, harassing this defendant with a view a coerce and compel this defendant to come to terms with the plaintiffs. As the defendant had been put in possession of the entire vacant land by the plaintiffs sister conveying her undivided 1/3 share in the property, the suit as framed and directed against the defendant praying for partition and separate possession on the footing that they are in joint and constructive possession is not maintainable. After purchase of the property the efforts of the defendant to purchase the remaining share proved in vain. In the circumstances, this defendant had applied for sub-division of the land and for issue of a patta accordingly. The Revenue Authorities after notice to parties effected sub-division allotting the defendant his demarcated, plot after providing for a common passage for which separate patta was issued. The defendant had also applied to the Corporation authorities and got separate door numbers allotted and assessments made. On obtaining necessary plans the defendant put up a pucca construction consisting of a ground and a first floor at considerable cost to the knowledge of the plaintiffs who did not choose to prevent the defendant from erecting the building. The construction consisting of a ground and a first floor at is not unauthorised. The defendant is in possession of the remaining plot paying taxes. The plaintiffs are not entitled to the injunction prayed for. The defendant is willing to purchase the remaining share under the Partition Act. The defendant did not prevent the plaintiffs from entering and inspecting the property. The plaintiffs having filed O.S. No. 2984 of 1984 and withdrawn the same, will not be entitled to maintain the present suit. 7. On the abovesaid pleadings the Court below framed relevant issues and granted decree, as stated above. We are concerned in these appeals only regarding a portion of the decree namely, the mandatory injunction granted. We may point out that the said question was decided in Issue No. 6 in the suit. 7. On the abovesaid pleadings the Court below framed relevant issues and granted decree, as stated above. We are concerned in these appeals only regarding a portion of the decree namely, the mandatory injunction granted. We may point out that the said question was decided in Issue No. 6 in the suit. There, the findings are that though the defendant has purchased an undivided 1/3 share, he has put up a building therein without the consent of the other co-owners namely the plaintiffs, causing injury to the interest of the plaintiffs, the defendant having constructed the building in the entire front portion of 456? abutting the road leaving only 3 passage in the said length of 45 6? for the plaintiffs to go to the rear portion which is left vacant. The Court below has also observed that Ex. A3 the reply dated 16-7-1977 to the suit notice Ex. A2 dated 16-6-1977, also establishes that the defendant had the intention even at the outset to cause injury to the plaintiffs by putting up the building in a portion of the suit land as stated above and then demanding from the plaintiffs to sell their share to the defendant. 8. Now before us the learned counsel for, the plaintiffs took us to the relevant portions of the pleadings and the evidence and contended that the Court below, taking into consideration the conduct of the defendant, ought to have granted mandatory injunction to demolish the entire building put up by the defendant in the suit land. On the other hand, the learned counsel for the defendant submitted that having regard to the value of the superstructure put up by the defendant to the extent of more than Rs. 3,00,000/- and having regard to the conduct of the plaintiffs in not having taken any legal action right from 1977 for several years to restrain the defendant from putting up the abovesaid construction, the court below ought to have negatived the mandatory injunction prayed for. Learned counsel on either side also relied on several decisions in support of their respective contentions. 9. We shall now consider the submissions in the light of the pleadings and evidence and the decisions cited by them. First of all it must be noted that, in Ex. Learned counsel on either side also relied on several decisions in support of their respective contentions. 9. We shall now consider the submissions in the light of the pleadings and evidence and the decisions cited by them. First of all it must be noted that, in Ex. A1 dated 30-5-1977 the above referred to sale deed executed by the sister of the plaintiffs in favour of the defendant, what has been sold is only an undivided 1/3 share of the said sister and it is specifically provided there thus: “Whereas the purchaser (defendant) has agreed to purchase the same, the vendor has required the purchaser to bear the entire expenses for legal proceeding for working out allotment of the undivided one-third share hereby sold and the purchaser has also agreed for th same. Despite this specific statement in the said sale deed, the defendant has not taken any steps to effect a division. Right from 1977 if really the plaintiffs were not willing to effect a division, the defendant could have filed a suit for effecting division, but he did not do so. On the other hand, the defendant as D.W. 1 even goes to the extent of saying thus: Tamil 10. Further, even though it is stated in the written statement that the abovesaid sale deed Ex. A 1 was effected “after notice to the plaintiffs giving them option to purchase her (plaintiffs sisters) share evidenced by her letter dated 20-12-1976 addressed to the plaintiffs herein”, the defendant has not chosen to file any such letter dated 20.12.1976. Furhter, the defendant as D.W. 1 has also not adverted to anything about the abovesaid letter dated 20.11.1976 in his evidence. Despite the fact that the abovesaid Ex. A1 sale deed directs the defendant to have partition effected between him and the plaintiffs, the written statement makes bold to stay that the abovesaid alleged direction in the sale deed is “not admitted”. Further, while the allegation in the plaint is that the defendant undertook to have a division effected between him and the plaintiffs, the written statement only states evaisvely that such an undertaking is “not admitted”. Further there is no denial to the allegation on the plaint” the plaintiff have been frequently demanding the defendant to effect a partition only in vain”. 11. Further, in Ex. Further there is no denial to the allegation on the plaint” the plaintiff have been frequently demanding the defendant to effect a partition only in vain”. 11. Further, in Ex. A2 suit notice dated 16.6.1977 itself the clients when they were passing along the said property casually had a look at the said property and were shocked to find that pucca construction was going on in the front portion with heaps of building materials stored in the rear portion and construction activity rapidly in progress. According to my clients you are a trespasser and you have no right to enter upon the property, much less start a construction. “After so observing the said notice calls upon the defendant to explain how he got into the property and in the meanwhile to suspend the construction activity. No doubt, the defendant sends a reply Ex. A3 dated, 16-7-1977 stating that he is not a trespasser but a co-owner along with the plaintiffs, he having purchased the 1/3 share in the property from the sister of the plaintiffs. No doubt in the said reply it is stated that the defendant is ready for partition. It also however states that the defendant is willing to purchase the plaintiffs 2/3 share. But it is very significant to note that in the said reply, “pucca construction that was going on in the front portion” of the property as alleged by Ex. A2 notice, was not denied at all. The defendant who purchased only 1/3 undivided share in the suit property cannot proceed to put up any construction on the suit property without the consent of the other-co-owners namely the plaintiffs, and particularly in the light of what is stated in the abovesaid Ex. A1 sale deed itself which enjoins the defendant to effect a division of his 1/3 share from the other 2/3 shares belonging to the plaintiffs. It is also significant to note that the defendant as D.W. 1 has admitted that before putting up the aforesaid construction he did not get consent from the plaintiffs. 12. Further, the defendant has also chosen to sub-divide the suit property through the Revenue authority and got a patta in his favour to the alleged divided 1/3 share, without notice to the plaintiffs in regard to the abovesaid sub-division and grant of patta. 12. Further, the defendant has also chosen to sub-divide the suit property through the Revenue authority and got a patta in his favour to the alleged divided 1/3 share, without notice to the plaintiffs in regard to the abovesaid sub-division and grant of patta. Though the written statement states in paragraph 6 that this was done “after notice to parties”, really speaking there was no such notice at all and the abovesaid averment in paragraph 6 of the written statement is a clear false allegation. This is borne out by Ex. A4 dated 28-11-1984 the show cause notice issued to the parties to the suit, by the Collector of Madras District, pursuant to the petition given by the plaintiffs dated 6-7-1984 to the said collector for setting aside Ex. A5 dated 28-4-1984 patta, granted to the defendant. In the said Ex. A4 the Collector specifically points out that the abovesaid sub-division and grant of patta made by the Tahsildar unilaterally without giving notice to all the parties concerned including the plaintiffs, is against law. That is why the Collector in Ex. A4 calls upon the defendant to show cause why the abovesaid action of the Tahsildar should not be set aside. Even when the defendant sends Ex. B 62-A dated 11-12-1984, in reply to Ex. A4 notice the defendant does not say that any prior notice was given to the plaintiffs before the above referred to sub-division or grant of patta. What is stated finally in Ex. B 62-A is that the matter is sub judice and hence the Collector is requested to defer consideration of the matter till disposal of the suit. It appears that the said matter has not been considered by the Collector in view of the pendency of the suit. 12 A. Further the defendant as DW. 1 has the audacity to depore thus Tamil 13. All these clearly show the conduct of the defendant throughout and particularly how he has thrown all proprieties to the wind and has completed the construction on the suit land in the most advantageous portion of his choice, though according to them the said portion may comprise of only 1/3 share in the entire property The suit property measures 2 grounds 1193 sq. ft. ft. (roughly 2.1/2 grounds) and the front portion which abuts the road, measures about 45 feet and the defendant has put up construction in the entire front portion abutting the road leaving only a passage of 3 feet therein for going to the rear, portion which according to the defendant, represents the 2/3 share of the plaintiffs. If the front portion, which according to defendant represents 1/3 share of the entire property, is built unilaterally by the defendant, it is clear that the value of the property in the rear portion would go down considerably and it cannot also be used by the plaintiffs property. This unauthorised act of the defendant in putting up the construction as aforesaid is totally atrocious. The whole conduct of the defendants has to be only condemned. Even with reference to the abovesaid passage of about 3feet left, it is admitted by the defendant himself as D.W. 1 that even over the abovesaid passage, in first floor there is roof or covering. 14. No doubt, the plaintiffs after sending Ex. A2 notice and getting the above said Ex. A3, reply could have filed a suit preventing the defendant from putting up any further construction over the suit land. But simply because they did not file a suit then in 1977 or immediately thereafter, (sic) the defendants deliberate action in putting up the construction violating all norms of justice can be condoned and mandatory injunction prayed for refused, particularly when plaintiffs have sent Ex. A2 notice and have also taken steps to set aside aforesaid sub-division and grant of patta? Further, it appears that the present construction that was put up, only began in 1981. D.W. 1 himself has admitted thus “1981 (Tamil) No doubt, learned counsel for the defendant pointed out that a temporary construction was put up much earlier and subsequently it was demolished and the present construction was put up in 1981. Anyway, it is needless to reiterate that the defendant has no right to put up any such construction without the consent of the other co-owners namely the plaintiffs. 15. Anyway, it is needless to reiterate that the defendant has no right to put up any such construction without the consent of the other co-owners namely the plaintiffs. 15. Section 39 of the Specific Relief Act which deals with mandatory injunction states: “When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may, in its discretion, grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.” (Emphasis supplied). In the present case it is clear to us that the above said discretion has to be exercised in favour of the plaintiffs taking particularly into consideration the above said conduct of the defendant. 16. A division Bench of Allahabad High Court in Darshan Lal v. Harkesh Sing (A.I.R. 1951 Alahabad 338) has also held that where an alienee from a co-sharer in exclusive possession of joint land has made unathorised constructions in spite of the objections by the other co-sharer, the latter would be entitled to bring a suit for mandatory injunction for demolition of the constructions and to restore the land to its original condition, that the mere fact that the suit is brought after 5 years of the completion of constructions cannot affect the right when there are no circumstances showing either that the plaintiff has waived his remedy or that it would be inequitable to give the relief asked by the plaintiff and that the fact that there is a vacant space still available in the joint land out of which the plaintiff can be given an area equivalent to his share in a suit for partition, is wholly irrelevant. The observations in the said decision squarely applies to the present case. In the present case also it cannot at all be said that the plaintiffs have waived their remedy or that it would be inequitable to give the relief asked by the plaintiffs. No doubt, the defendant might have put up a construction worth even Rs. 3,00,000/- as deposed by him, though he has not chosen to give any documentary proof regarding the same. No doubt, the defendant might have put up a construction worth even Rs. 3,00,000/- as deposed by him, though he has not chosen to give any documentary proof regarding the same. But despite objection, he has put up the said construction, and taking into account his entire conduct as stated above, it cant be said that it would be inequitable to give the mandatory injunction relief prayed for by the plaintiffs. No, doubt, learned counsel for the defendant pointed out that in that Allahabad case the plaintiff go an order of injunction restraining the defendant there in from making any construction over the plots in dispute. His contention is that in the present case the plaintiffs have no secured such an injunction. But this feature by itself, in our opinion, will not tilt the case against the plaintiffs and in favour of the defendant, taking into account the entire conduct of the defendant as stated above. 17. Further, the relevant observations in another decision of the Allahabad High Court which is a Full Bench decision in Chhedi Lal v. Chhotey Lal (A.I.R. 1951 Allahabad 199) are as follows:— “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 with held 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 discreation upon proof of circumstances showing which side the balance of convenicence lies. 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 discreation upon proof of circumstances showing which side the balance of convenicence lies. That the Court in the exercise of its discretion will be guided by considerations of justice, equity and good consicence cannot be overlooked and it is not possible for the court to lay down an infexible rule relief for d emolition and injunction should be granted or refused.” In the present case, in our opinion, the plaintiffs cannot be adequately compensated and greater injury will result to the plaintiffs by the refusal of the mandatory injunction.” 18. Further in Moolchand v. Chhoga (A.I.R. 1963 Rajasthan 2 relying on Murarilal v. Balkishan (A.I.R. 1926 Nagpur 416 it has been held that the principle is well settled that a plaintiff is entitled to a mandatory injunction where the defendant despite protests from the plaintiffs persists in his unlawful act and behaves in an unfair and high handed manner. The Rajasthan High Court has also observed in the abovesaid decision thus:— “A further priciple to bear in mind is that where an injury caused to a person or persons would constitute a sort of a perennial trespass - a trespass day in day out - upon his or their rights, normally a mandatory injunction is the only appropriate remedy”. 19. Further, a Division Bench of our High Court had also held in Subbayya v. Somalingam (A.I.R. 1926 Madras 223 that where a land is the common property of two persons and one of them puts an obstruction on it which has the effect of making it less convenient for the other co-owners, the only remedy open to that other is to sue for a mandatory injunction for restoration of the lane to is original condition. 20. No doubt, learned counsel for the defendant drew out attention to Krishnan Pillai v. Kailasathammal (A.I.R. 1928, Madras 810) to content that the plaintiffs must have resorted to legal proceedings at the earliest possible moment to escape charge of laches. But in that case also it has been specifically emphasised that in the case of grant of mandatory injunction, the decision must depend to a very large extent on the facts of each particular case. But in that case also it has been specifically emphasised that in the case of grant of mandatory injunction, the decision must depend to a very large extent on the facts of each particular case. On the facts of the present case it is clear to us that the balance of convenience is only in favour of the plaintiffs. 21. Further, in Prabhoo v. Doodh Nath (A.I.R. 1978 Allahabad 178) also it has been pointed out thus:— “Another factor that must be borne in mind is that one Co-owner has not in law any right to appropriate land to himself out of a joint land against the consent of his co-owners. High handed action by one Co-owner cannot be encourged 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.” No doubt, in the above said observation the learned counsel for the defendant sought to specifically point out the clause “especially when a co-owner has come to court at the earliest” and contended that since the plaintiffs have not come to court at the earliest, they should not be given the relief of mandatory injunction prayed for. But it should be pointed out that in the above said Allahabad case, on the facts of the said case the aggrieved co-owners came to court at the earliest and that is why the abovesaid rider was added to the above said observation contained in paragraph 15 of the said judgment. But that does not meant that only when the aggrieved co-owners come to court at the earliest, they must be given the remedy. 22. Likewise, we do not think the other decisions cited by the learned counsel for the defendant namely Krishna Kumar v. Padum Singh (A.I.R. 1959 Patna 511) and Khimji Mulji v. Popatlal Bhanji (A.I.R. 1951 Saurashtra 85) would apply to the present case, as they turn on the respective facts of those decisions. 23. The net result is that there is no other alternative except to grant the mandatory injunction as prayed for. The decision arrived at by the trial court in this regard is vague and unworkable. 23. The net result is that there is no other alternative except to grant the mandatory injunction as prayed for. The decision arrived at by the trial court in this regard is vague and unworkable. Further, the defendant has no right to occupy unilaterally the front 1/3 portion abutting the road and put up construction therein as he has done, despite the protest by the plaintiffs. The said front portion which abuts the road is about 45 in breath and almost the entire 45 front portion has been constructed leaving only the abovesaid passage of 3 which also is a covered one, as stated above. In the abovesaid circumstances, there is no other alternative except directing the demolition of the entire structure put up by the defendant. No doubt, we also tried out best to bring about the compromise between the parties. But while the plaintiffs who have got greater share of 2/3 in the entilre suit property were only willing to purchase the defendants 1/3 share, the defendant was willing only to buy the other 2/3rd share of the plaintiffs. Despite out expression, during the course of th arguments, of the possibility of the decision going against the defendant in the light of the abovesaid facts and circumstances of the case, the defendant was not willing to sell away his 1/3 share to the plaintiffs including the superstructure put up by him, even at a price a little-above the present market price a little above the present market price both the said 1/3rd share and the said superstructure. In the above circumstances, we have no other alternative except to grant the mandatory injunction prayed for. Accordingly, the judgment and decree granted by the Court below in relation to the mandatory injunction prayer are modified by substituting the grant of mandatory injunction as prayed for in the suit. In other respects, the judgment and decree of the court below are confirmed. 24 In the result, A.S. No. 643 of 1987 is allowed with costs and A.S. No. 14 of 1987 is dismissed. There will be no seperate order as to costs in A.S. No. 14 of 1987.