Judgment : This second appeal is directed against the judgment of the learned Subordinate Judge in A.S.No.43 of 1984, dated 12. 1984 confirming that of the learned District Munsif, Tiruchirapalli in O.S.No.594 of 1979 dated 19. 1982. .2. The plaintiff in the above mentioned suit is the appellant herein having filed a suit for mandatory injunction. The plaintiff contended that the suit property was the self-acquired property of the father of plaintiff and the defendant. Their father had effected a registered partition deed dated 6. 1972. As per the said partition deed, the plaintiff was allotted the second item in ‘A’ schedule. From the date of partition, the plaintiff and the defendant had become divided and they were in possession and enjoyment of their respective shares. The plaintiff further contended that he has right in the common pathway from south to north. The measurement of the same is 5. At the entrance from the south, there was already a common latrine existing on the extreme southern side and the plaintiff has ingress and egress in the south to north common pathway which is shown as EF in the plan, the first portion belonging to the plaintiff. The other sharers are having equal rights to have common access to their respective property from the south and as per the recitals in the partition deed, the parties are entitled to have a common right to enjoy the common access, that the plaintiff is entitled to take water from the common well in the northern side of the defendant’s property and the defendant had deliberately constructed a lavatory and bathroom in the common pathway in between the portion marked as EF and that from the newly constructed lavatory bad smell emanates and causes great danger for the health and hygiene to the inmates and that the defendant had no right to construct the lavatory and bathroom in the common access. The plaintiff further contended that he was employed at Jabalpur and the defendant had constructed the lavatory and bathroom in February, 1979 and the same was the offending construction. The plaintiff further contended that he was employed at Jabalpur and the defendant had constructed the lavatory and bathroom in February, 1979 and the same was the offending construction. The plaintiff further pleaded that the same affected the free ingress and egress to plaintiff’s right of passage and open space was causing a great danger to the health and hygiene to the inmates of the plaintiff’s house and that the newly constructed lavatory and bathroom covered the major extent of the common access in front of his portion. It was further pleaded that the defendant was having open space in front of his property in the north and he could construct lavatory and bathroom in his portion. The construction of the new lavatory and bathroom was a deliberate invasion of the plaintiff’s right in the common pathway and hence the suit. .3. The defendant resisted the suit contending that the suit as framed was not maintainable in law inasmuch as there was no prayer for declaration for the suit property as a common pathway and the suit property was not ear-marked as a common pathway. The defendant disputed the plan filed along with the plaint and the contention that there was a common pathway had no foundation either in the partition deed or under any other circumstances. It was further contended that the plaintiff cannot demand user other than the one to which it was put to, namely, when the property was given to him it was only a carshed and he cannot demand new rights much less novel rights. It was further contended that the plaintiff had not complained at the relevant time when the construction was being put up even though he was fully aware of that and therefore he was estopped from claiming the right of demolition. 4. During the trial both the plaintiff and defendant examined themselves as witnesses and Ex.A-1, the copy of the partition deed was filed by the plaintiff along with a rough plan of the disputed property. 5. Both the courts below considered the evidence and held that the plaintiff has not established his claims and therefore rejected, the suit praying for a decree for mandatory injunction. 6. 5. Both the courts below considered the evidence and held that the plaintiff has not established his claims and therefore rejected, the suit praying for a decree for mandatory injunction. 6. I have gone through the records as well as the judgments of both the courts below and even though the conclusions of both the courts below may appear to be questions of fact, yet, a proper analysis of the conclusions arrived at by the courts below will show that their findings are totally opposed to the pleadings and evidence tendered in the suit as well as glaring errors in appreciating the pleadings and the evidence. A plan has been filed along with the plaint and even though in the written statement the defendant questions the correctness of the plan, both the courts below have in fact accepted the plan filed by the plaintiff and there is absolutely no finding to the effect that the plaintiff’s plan was in any manner erroneous. Therefore the plan filed by the plaintiff can be taken to reflect the real lie of the land and on the basis of which the claims of both the parties have to be considered. 7. It is the consistent plea of the plaintiff that the lavatory has been built up in a common pathway belonging to all the three brothers who were parties to Ex.A-1 partition deed. The fact that the construction had been put on in common pathway was sought to be seriously disputed by the defendant and therefore one of the main issues which were taken up for consideration by both the courts below was as regards the pleading of the plaintiff regarding, whether common pathway was correct or not. It is rather surprising to see that the trial court even after giving a categoric finding on the basis of the partition deed as well as the admitted evidence of the defendant himself that the disputed portion was a common pathway, yet a contrary finding was also recorded to the effect that the claim of the plaintiff that the lavatory was situated in a common pathway was not proved by documentary evidence. The following paragraph is extracted to show how the trial Judge had committed a grave error confliction with his own findings. The following paragraph is extracted to show how the trial Judge had committed a grave error confliction with his own findings. “So from the evidence of P.W.1 and D.W.1, it is evident that the suit property is used as a common pathway among the four brothers and it is orally proved that the suit property in which the lavatory is situated is used as common pathway as claimed by the plaintiff. But in Ex.A-1, it is not specifically mentioned that the suit property is a common pathway. D.W.1 in the chief examination deposed Ex-A-1. P.W.I also in the cross examination deposed So from the evidence of P.W.1 and D.W.I, it is evident that the suit property is specifically mentioned for the use of common pathway or for any other common purpose. In the absence of documentary evidence, as per Sec.91 of the Evidence Act, I am of the view that the suit property is the common property of all the four brothers and all of them have the right to enjoy the suit property as they are co-owners of the suit property. So the property in which the lavatory is situated is a common pathway as claimed by the plaintiff is not proved by documentary evidence and as such the oral evidence adduced in this case is only specie of the genus that the common pathway is one such right of enjoyment of all co-owners and as such Issue 1 is accepted not in full but in part only. ” 8. The underlined [itlics] portion of the judgment of the trial court will show that it is in direct conflict with his own finding in the earlier portion of the paragraph. The said finding has also been erroneously accepted by the lower appellate court. Therefore the findings of the courts below that the lavatory was not built in the common pathway cannot be sustained. .9. The courts below have also held as though the defendant was justified in putting up the construction as an easement of necessity. A perusal of the plan which has been accepted by the courts below will clearly show that the defendant was himself having sufficient open space in front of his own share of the land. In fact the plaintiff himself has pleaded to that effect and had contended that the defendant could construct the lavatory and bathroom in front of his portion. In fact the plaintiff himself has pleaded to that effect and had contended that the defendant could construct the lavatory and bathroom in front of his portion. A bare perusal of the plaint plan substantiates this fact clearly and the non-consideration of the said fact is totally erroneous and the finding of the courts below to the effect that the defendant’s construction was due to easement of necessity, cannot at all be sustained as not based on any pleading or evidence. 10. As regards the injury which was caused to the plaintiff, there again, both the courts below have unfortunately, not considered the plight of the plaintiff in a proper way. It is the positive evidence of the plaintiff that the new latrine is a dry latrine and that in view of the irregular attendance of the Scavenger lady the plaintiff had to face unhealthy situation and also bad smell emanating from the latrine. This aspect of the plaintiff’s evidence was not at all challenged and in fact in the cross-examination the plaintiff has. positively reaffirmed his pleading in the plaint. The conduct of the defendant in not putting up the lavatory in front of his own portion where the very same space is available is not at all understandable and cannot be appreciated. There is no justification for the defendant to keep the front area of his portion free and to have constructed lavatory only on the front side of the plaintiff’s house. The result of the construction of the lavatory is that three lavatories are placed just in front of the portion belonging to the plaintiff and apart from the bad smell which is sure to be emanated, the entire front space of the common pathway opposite to his portion is positively reduced. 11. Therefore, I am inclined to hold that the action of the defendant in putting up the construction in front of the portion of the plaintiff is totally unjustified and the finding of the court below that the construction was required as a necessity is not at all justified. .12. The learned counsel for the respondent Mr.M.V. Krishnan contends that the plaintiff had not objected to the construction when the construction was being put up. .12. The learned counsel for the respondent Mr.M.V. Krishnan contends that the plaintiff had not objected to the construction when the construction was being put up. In this context it has to be seen that the construction has been put up in the month of February, 1979 and the suit has been filed in the month of April, 1979 and it cannot be stated that there is any unreasonable delay on the part of the plaintiff to approach the court. It is also specifically averred in the plaint that the plaintiff is employed and residing at Jabalpur. This aspect of the plaintiff’s contention was not at all challenged in the written statement nor in the oral evidence. Therefore, I do not think that there is any unreasonable delay on the part of the plaintiff in having approached the court. 13. The further contention of the learned counsel for the respondent is that the lavatory ‘A’ is already there in the common pathway. The said contention completely overlooks the fact that ‘A’ is an ancient lavatory which was already there even before the partition was effected and the parties have taken each share subject to the advantages and disadvantages which were incident thereto. There is no justification to the defendant to put up an additional lavatory in front of the portion of the plaintiff ignoring that the defendant himself has sufficient space in front of his own portion. Therefore, I do not find any substance in the said objection also. 14. The next objection as raised by the learned counsel for the respondent is that the plaintiff has not prayed for a declaratory relief and his prayer for mere mandatory injunction is not sustainable. There is no basis in the said contention having regard to the fact that there was absolutely no dispute between the parties over any of the rights, either common or exclusive as between the parties. Both parties agreed that they are in occupation of their respective shares and that the portion in which the construction has been put up belongs in common to all the parties. Therefore, there is no occasion or necessity for the plaintiff to pray for a declaratory prayer. .15. The learned counsel for the respondent relies on the judgment of Veeraswami, J. (as he then was) reported in Sankarasubbu Pillai v. Parvathi Ammal, (1961)1 M.L.J. 480 : 74 L.W. 182. Therefore, there is no occasion or necessity for the plaintiff to pray for a declaratory prayer. .15. The learned counsel for the respondent relies on the judgment of Veeraswami, J. (as he then was) reported in Sankarasubbu Pillai v. Parvathi Ammal, (1961)1 M.L.J. 480 : 74 L.W. 182. The learned counsel would seek to rely on the extract in the judgment that in the case of co-owners no one can claim an exclusive right to any particular part of the property owned in common and an encroachment by a co-owner by building upon a portion of the common property cannot be equated to trespass, unless such an encroachment is shown to have been objected to by the other co-owners at the earliest time. On the basis of the said observations, the learned counsel would contend that it was not competent for only one of the co-owners to claim exclusive right in the absence of objections from the other-co-owners. I am afraid that the judgment does not lay down any such ratio and it is settled principle of law that even a single co-owner who alleges to have been injured by the conduct of another co-owner, can maintain an objection against the other, notwithstanding as to whether some other co-owner, has objection to the offending action or not. Merely because some other co-owner does not raise an objection, the co-owner who actually suffered injury is not precluded from questioning the offending construction. The facts peculiar to the present case show that offending construction affects only the interest of the plaintiff and nobody else and therefore the plaintiff is definitely competent to maintain an objection even though the other co-owners may not object to the conduct of the defendant. 16. The learned counsel for the appellant relies on a Division Bench judgment of the Punjab High Court reported in Sant Ram v. Daya Ram, A.I.R. 1961 Pun. 528, in which the Court has held that where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by one of the co-owners. 17. Further reliance is placed on the judgment of the Allahabad High Court reported in Prabhoo v. Doodh Nath, A.I.R. 1978 All. 178. 17. Further reliance is placed on the judgment of the Allahabad High Court reported in Prabhoo v. Doodh Nath, A.I.R. 1978 All. 178. The learned Judge of the Allahabad High Court has held that 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 and the 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. In this case, it is admitted in the evidence of D.W.1 that he has not obtained any permission from the plaintiff or the local authorities before the construction was put up. 18. Having regard to the facts and circumstances, I am unable to sustain the judgments of the courts below which are totally unsustainable on legal issues arising in the above second appeal on the admitted facts and the evidence adduced in the dispute between the parties hereto. Therefore I am inclined to hold that the plaintiff is entitled to mandatory injunction as prayed for by him. The learned counsel for the appellant also makes it clear that his client will not and cannot have any objection to the defendant putting up a lavatory in front of his own portion and therefore there is no question of any disability that would be caused to the defendant in granting the decree for mandatory injunction. 19. In the said circumstances the judgment and decree of the courts below are set aside and the decree as prayed for is granted and the defendant is granted three months time to demolish the offending portion from this date. The second appeal is allowed. No costs.