Judgment : Appellant is the legal heir of the deceased defendant in O.S.No.476 of 1989, on the file of District Munsif’s Court, Madurai Taluk. 2. Suit filed by respondent (plaintiff) was one for declaration that the suit property is a common pathway belonging to both plaintiff and defendant, and consequently, to grant a permanent injunction restraining the defendant from interfering with the plaintiff’s possession and enjoyment of the same, and also for a mandatory injunction to remove a septic tank which was constructed within the pathway. 3. Defendant disputed all the claims of plaintiff. 4. It is better to summarise what is stated in the pleadings. 5. It is said that the suit property is a common lane and a rough plan was also produced along with the plaint, showing the location. Respondent’s house is situated on the southern side of the common lane, and defendant’s house is situated on the northern side. It is said that the plaintiff’s house is more than 100 years old, and defendant’s house is more than 125 years old. Plaintiff’s building is Madras terraced. The walls of his building are made up of brick and mud mortar. It is said that the building was allotted to plaintiff’s share in the registered partition deed dated 23. 1987. The northern boundary of the plaintiff’s house property is described as the common lane and the house of the defendant. It is alleged that on the night of 20.6.1989, defendant clandestinely arranged to construct a latrine and a septic tank in the said common lane. On 26. 1989, plaintiff found that the defendant had completed the construction of a septic tank in the suit common lane and had dug earth for the purpose of laying foundation for a latrine to be constructed in the common lane. Even though the same was protested, it was not of much use. Therefore, plaintiff sent a petition to the local Panchayat and also sent a telegram to the Town Panchayat. Even though the Panchayat directed the defendant to stop the construction of the proposed latrine and action will be taken against her, it was not heeded to. On 26. 1989, defendant has shifted the location of the proposed latrine within her own space in the north of the suit common latrine, but did not remove the septic tank clandestinely constructed on the night of 20.6.1989. On 26. 1989, defendant has shifted the location of the proposed latrine within her own space in the north of the suit common latrine, but did not remove the septic tank clandestinely constructed on the night of 20.6.1989. It is said that the septic tank is about five feet deep, and between the septic tank and plaintiff’s northern wall, there is a gap of only one foot. Thus, according to plaintiff, defendant had encroached two feet into the suit common lane. The construction of a septic tank within the common lane is illegal and unwarranted, and it will obstruct the plaintiff’s enjoyment of the suit common lane. Further, it will cause serious damage to the plaintiff’s building. It is, therefore, prayed that the defendant should be directed to remove the septic tank. It is on these allegations, reliefs stayed above were sought for. 6. In the written statement of defendant, who died later, she contended that the septic tank was not constructed in the common lane, but the same was constructed only in her property. It is further said that the plaintiff never protested about the location of the septic tank, and he took objection only for the location of the latrine just adjoining his northern east to west wall. This defendant voluntarily agreed to shift the latrine and accordingly constructed the same within her own property. Even before the complaint was made, the construction of the septic tank was over. The septic tank will not at all affect the plaintiff’s property, and the apprehension is only imaginary. It is also said that the conduct of the plaintiff shows that he has acquiesced the construction of the septic tank within the property. 7. In the additional written statement, she has fur- ther said that there is no common lane as alleged by plaintiff, and he has no right over the space claimed as common lane. It is part of the defendant’s property and the connection of the latrine to the septic tank is below the ground level. She prayed for dismissal of the suit. 8. Trial Court took elaborate evidence. A commissioner was also deputed, and he prepared a plan and report, and, on the basis of the evidence, it came to the conclusion that the property is a common pathway over which plaintiff and defendant have got equal right. She prayed for dismissal of the suit. 8. Trial Court took elaborate evidence. A commissioner was also deputed, and he prepared a plan and report, and, on the basis of the evidence, it came to the conclusion that the property is a common pathway over which plaintiff and defendant have got equal right. It further came to the conclusion that the latrine constructed by the defendant is within her property and the same will not cause any nuisance. But, in respect of the septic tank, it came to the conclusion that a major portion of the same abuts into the common lane. Since plaintiff and defendant are common owners, any construction without the consent of the plaintiff is objectionable and, therefore, the same is liable to be removed. A mandatory injunction was also granted, directing the defendant to remove the septic tank from the common lane. 9. Though an appeal was taken to the lower appellate Court, the same was not successful. The judgment and decree of the trial Court was confirmed in A.S.No.56 of 1993, on the file of District Judge, Madurai. 10. It is against the concurrent judgment, the legal heir of the defendant has preferred this second appeal. 11. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration: "(1) Whether in law the lower appellate court ought not to have been that the plaintiff has not established his title in that he has admitted in evidence that there is no recital regarding common lane in Ex.A-2 and Ex.A-3, and that except Ex.A-2 and A-3 not her document has been filed? .(2) Whether in law has not the lower appellate court failed to see that the suit property is the exclusive property of the defendant? .(3) Whether in law the lower appellate court ought not to have seen that the recitals as to boundaries in documents not interparties are inadmissible in evidence under Secs. 11, 13 (a), 32 (3) and 32 (7) of the Evidence Act and that Ex.A-2 and A-3 are not admissible in evidence - vide 97 Law Weekly page 691? .(3) Whether in law the lower appellate court ought not to have seen that the recitals as to boundaries in documents not interparties are inadmissible in evidence under Secs. 11, 13 (a), 32 (3) and 32 (7) of the Evidence Act and that Ex.A-2 and A-3 are not admissible in evidence - vide 97 Law Weekly page 691? .(4) Whether in law the Courts below ought not to have seen that each co-owner is entitled to use the property in the way most advantageous and beneficial to him without causing any injury or detriment to the other co-owner especially when it has been admitted by P.W. 1 that no inconvenience has been caused? 12. Eventhough various contentions were taken, the only point that was urged at the time of arguments was regarding Question No.4, i.e., how for the user of the common pathway is affected, and whether the mandatory injunction granted by the trial Court and confirmed in appeal is justified. 13. In view of the concurrent finding, the suit property is a common lane, and in view of the fact that no argument was taken challenging the said finding, it now follows that over the pathway both plaintiff and defendant have equal rights. Both of them are co-owners in so far as the pathway is concerned. In the plaint, how far the construction of septic tank will affect the user of the plaintiff over his building and also common pathway, is alleged. In paragraph 4, it is said that the septic tank is about 5 ft. deep. There is a gap of only 1 ft. between the septic tank and the plaintiff’s northern wall. Thus, the defendant has encroached 2 ft. into the suit common lane. The construction of a septic tank within the common lane is illegal and unwarranted. It will obstruct the plaintiff’s enjoyment of the suit common lane. Further, it will cause serious damage to the wall of the plaintiff’s building because the plaintiff’s wall is made of brick and mud mortar and is more then 100 years old. The defendant has no right to put up any construction like septic tank in the suit common lane. The plaintiff had immediately protested against the said construction and had taken action through the Avaniapuram Town Panchayat to prevent the construction. The defendant has no right to put up any construction like septic tank in the suit common lane. The plaintiff had immediately protested against the said construction and had taken action through the Avaniapuram Town Panchayat to prevent the construction. The existence of the septic tank in the suit common lane will adversely and injuriously affect the plaintiff’s house property, and his right of common enjoyment of the suit property. 14. As against the said contention, the answer in the written, statement is that the pathway belonged to her absolutely and it is only in the property of the defendant, the septic tank has been constructed. It is further answered thus: "...The construction of the septic tank will not in any way affect the enjoyment of the suit property. Further, plaintiff has no right to complain of the same. It is false to state that the construction of the septic tank will cause any damage, much less serious damage to the plaintiff’s northern wall. The septic tank is built of brick and cement mortar and has separate walls independent of the plaintiff’s wall. There will not be any seepage at all. The septic tank will not at all affect the plaintiff’s property and the apprehension is only imaginary. The plaintiff cannot ask for the removal of the septic tank....." Naturally, on the basis of these allegations and counter-allegations, a finding is required by the trial Court as to how far the enjoyment of the common pathway is affected. The trial Court, after holding that it is a common pathway, held that the defendant has no right to put up any construction in the common pathway. The said approach of the trial Court was affirmed in appeal. The lower appellate Court was also of the view that when the plaintiff is a co-owner, the construction of the septic tank by the defendant is unauthorised. Mandatory injunction was granted accordingly, for removal of the same. 15. I feel that the said approach by the trial Court is not proper. In this case, it is not a case of easement. Both the plaintiff and defendant are co-owners in so far as the common lane is concerned. What are the rights of a co-owner over a passage? Mandatory injunction was granted accordingly, for removal of the same. 15. I feel that the said approach by the trial Court is not proper. In this case, it is not a case of easement. Both the plaintiff and defendant are co-owners in so far as the common lane is concerned. What are the rights of a co-owner over a passage? In Mitra’s ‘Joint Property and Partition’ - Tagore Law Lectures, Third Edition 1991, at page 254, the learned Author has said thus: "It is not permissible for a co-owner of co-sharer to change the mode of user of a common passage without the consent of the other co-sharers. As between the co-sharers of a common passage each has the right to lay underground drains. In such a case there is no question of common passage being a servient tenement in respect off any of the promises of the co-owners. Every Co-owner has the right to make full use of the common passage. Even though a co-owner has the right to lay a new underground drains in the common passage, but such laying of new drains should not interfere with the existing drains and with the right of other co-owners of the passage. A person’s right to drain his own premises by laying underground pipes in his own land is an incident of legal ownership and is not easement. The question of tenement arises when two tenements are involved, the dominant tenement to which the right belongs and the servient tenement on which the obligation is imposed. Such a situation does not arise between co-owners of common passage having right of drainage through it. When a right of drainage is given to the co-owners by deed of partition to the erst while co-owners, it is a right to drain the house and premises specified therein and is a joint right of drainage by the underground process. Moreover, such right is not restricted only to the building existing at the time of partition and the co-sharers have got the right to lay new underground drain during the common passage for the new buildings which may be erected on the premises provided there is no restriction in the deed of partition against construction of a new building. Moreover, such right is not restricted only to the building existing at the time of partition and the co-sharers have got the right to lay new underground drain during the common passage for the new buildings which may be erected on the premises provided there is no restriction in the deed of partition against construction of a new building. So, it is, therefore, clear that when a common passage belongs to both the plaintiff and the defendant, there is no question of any one party having an easement right over the same. It is a joint property and any co-owner has to use such property reasonably in the sense that his user does not amount to ouster of other co-owners. No co-owner can complain that the use of the common passage by the other causes an unnecessary or additional burden upon the common passage. A co-owner carrying his carts, bullocks and ploughs through the joint property cannot be said to have caused unnecessary in convenience to the other co-owner." (Italics supplied) 16. In B.B.Katiyar’s ‘Easements & licences’ - 11th edition (1993) at pages 222, 223, the learned author has extracted with approval, a passage from the decision reported in Subbiah Goundan v. Ramaswamy Goundan, A.I.R. 1973 Mad. 42 at 45, wherein it was held thus: "...when co-owners at the time of partition set apart a portion of the common property to be used as common for the beneficial enjoyment of their respective shares, that involves a dedication. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time, causing any injury or detriment to the other co-owners. It is for such a co-owner to decide in what may he could so use the common property to his maximum advantage. It is not for the other co-owners to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the other co-owners or affect their rights or in any way weaken, damage or injure the common property. Such Co-owners are not entitled to prevent the other co-owner from using the common property in the way most beneficial to him....." Little down, the learned Author said as follows: ".....The principle underlying the enjoyment of common property is that one co-owner can use the common property to his maximum advantage, subject, of course to the rights of the other co-owner not being any way materially interfered with and without damaging or weakening the common property." 17. If this is the law regarding enjoyment of common property, and when there is an allegation in the plaint and counter - allegation in the written statement, a finding in that regard was necessary. In the trial Court judgment, there is no finding as to how far the construction of a septic tank beneath the ground level in the common lane will affect the plaintiff’s right of his enjoyment of the lane. So long as there is no finding, the mandatory injunction should not have been granted. A decree for mandatory injunction is granted only for the reason that the plaintiff and defendant are co-owners over the pathway. That by itself is not sufficient to grant a decree for mandatory injunction. The lower appellate Court also held that since the parties are co-owners, without the consent of the other co-owner, no construction could be had in the common pathway. The said approach is also not correct. Granting of mandatory injunction must depend upon the injury caused to the common pathway and how far the user is affected. I feel, for the said purpose, the decisions of the Courts below require interference. 18. In the result, I set aside the judgments and decrees of the Courts below and remand O.S.No.476 of 1989, on the file of District Munsif’s Court, Madurai Taluk, to that Court, for entering a finding on the point stated above and thereafter hold whether the plaintiff is entitled to get a mandatory injunction or not. 19. In so far as the cross-appeal is concerned, the same is not admitted, and no question of law is raised. Apart from the same, both the Courts below have concurrently held that the latrine is constructed within the defendant’s property, and that too after the Panchayat permitted the defendant put up the latrine, on the basis of Ex.B-1. 20. 19. In so far as the cross-appeal is concerned, the same is not admitted, and no question of law is raised. Apart from the same, both the Courts below have concurrently held that the latrine is constructed within the defendant’s property, and that too after the Panchayat permitted the defendant put up the latrine, on the basis of Ex.B-1. 20. In the result, the appeal is allowed and the suit is remanded to the trial Court as indicated above. The cross-appeal is dismissed. Parties will appear before trial Court on 23. 1997. Parties are directed to bear their respective costs in both the second appeal and cross-appeal.