1. The finding of both Courts is that the defendant has encroached upon the plaintiffs' land by putting up the gallery on the second floor of his house. The trial Judge was of opinion that this was not a matter for compensation, but was not willing at the same time to grant a mandatory injunction unless the plaintiffs built on their land within twelve years. The trial Court gave a declaration that the plaintiffs would be entitled to have a certain portion of the defendant's gallery and roof removed if and when they erected a building over their plaint land, provided that they built within twelve years from the date of the decree, For this form of the decree, there is, so far as I am aware, no precedent. The appeal Court substituted for this conditional order an order granting the relief by way of mandatory injunction claimed by the plaintiffs.
2. Mr. Coyajee, on behalf of the appellant, has urged that this is a case for compensation and not for a mandatory injunction. The matter of granting a mandatory injunction is a matter which is in the discretion of the Court. That discretion, however, has to be exercised with due regard to certain principles which have been laid down, and accepted as authoritative in matters relating to the granting of a mandatory injunction in such cases. In Rewa v. Vrijvalabh (1903) 6 Bom. L.R. 41. Jenkins C.J. enunciated that principle as follows (p. 42):-
Now it is well established as a rule by which Courts are guided in reference to the granting of mandatory injunction that though it is within the power of a Court to grant a mandatory injunction even if the building complained of has been completed, still the Court is reluctant to make an order for the removal of a building already finished at some considerable cost and trouble unless it be clear that material damage would otherwise ensue. It is by reference to this rule that the point before ns should be decided, and we are under the impression that these considerations were not closely present in the minds of the lower Courts when they dealt with this part of the case,...
The facts of the case were similar to the case with which we are here dealing. The defendant had encroached upon apart of the plaintiffs' strip of land by constructing his otla and thereafter his Mandvi (building) upon it, and the lower Courts had ordered the removal of the portions of the building which had encroached upon the plaintiffs' land. The Court, after formulating certain issues, remanded the case to the lower Court to find on those issues. One of the issues so sent down was : What is the amount of damage, if any, suffered by the plaintiffs by reason of the erection of the superstructure?
3. In Nasarbhad Ahmedbhai v. Munahi Badrudin I.L.R (1891) Bom. 533. the plaintiff's eaves had projected over the defendant's roof which had ranted on a wall common between the parties for more than thirty years, and the- plaintiff had thus acquired a right to have the water carried from his roof on to the defendants' roof, and the defendants had raised the common wall and removed the plaintiff's eaves. Sargent C.J., in remanding the case to the lower Court, remarked (p. 535) :-. the defendants having raised the common wall and removed the plaint- iffs eaves, the plaintiff is entitled to relief, either by damages, or mandatory injunction. To determine which, it will be necessary, in the state of the authorities, for the Judge to find on the following issues ;-
1. Has the plaintiff acquiesced in the defendants' building, or warned the defendants to desist from such building; and all what stage of the building operations was such warning given?
2. How soon, after the plaintiff's eaves were removed, did the plaintiff take legal proceedings against the defendants?
3. Can the injury caused to the plaintiff by the removal of his eaves be adequately compensated by damages, and, if so, what damages should be awarded?
4. In the present case the lower appellate Court has held that the defendant is not entitled to rely on an absence of notice unless there was a ground for him to be honestly ignorant of the plaintiffs owning the site to the west or unless the plaintiffs by their (silence had induced the defendant to spend money for building his structure on the plaintiffs' site. The lower appellate Court has held that the defendant's work was incomplete when the plaintiffs put up an obstruction, and that the defendant had paid no heed to the obstruction. The lower appellate Court is of opinion that the defendant had knowingly trespassed on the plaintiffs' land. The third issue framed in the lower appellate Court was: 'Does the question of plaintiffs' notice of obstruction to defendant at all arise If so, was the work in dispute wholly or partly finished before the notice If so, what is the effect ?' The learned Judge answered the issue as follows : 'No. Even if it does, I find that the work was partly done and was progressing when the notice was given. Removal must be ordered.' This part of the learned Judge's finding can be better elucidated by reference to the finding of the trial Court on the same point. The third issue before the trial Court was : 'Was the work of the gallery and chhappar finished before the defendant got the plaintiffs' notice ?' The trial Court answered it as follows: 'Gallery was completed but not the chhappar.' In my opinion, as the finding seems to be that the gallery was completed by the defendant before he received any notice of the plaintiffs' objection to the ejection of the gallery, and as there does not appear to be any direct evidence in the case which would justify the assumption that the defendant had before the notice knowingly committed trespass on plaintiffs' land, the Court would be reluctant to order a structure which has already been completed at some considerable cost to be pulled down, unless it can be shown that its existence would cause such damage to the owner of the land encroached upon as would not be compensated by money. The finding of the lower appellate Court that the trespass was knowingly committed by the defendant has reference to the fact found by the Court that the defendant had left the plaintiffs' obstruction unheoded, and had thus acted dishonestly. The conduct of the defendant after the completion of the gallery is not, in my opinion, very material unless it can be inferred from it that he knew before he completed the gallery that he would trespass on plaintiffs' land by constructing it, If the dishonesty of purpose or knowledge of trespass could be brought home to the defendant before he completed the gallery, it would certainly be a case for a mandatory injunction and not for compensation. As the finding of the lower appellate Court does not go so far, we feel that the case does not call for a mandatory injunction, but is one where substantial monetary compensation would suffice. The decree of the lower appellate Court will be varied by striking out from it the words :-
Defendant do remove within three months from to-day the encroachments of the gallery and roof of his building so far as they project beyond, i. e., to the west of the stone ota, with railings on, on the ground floor. In case of default, plaintiffs do get these removed through Court in execution at costs which shall be defrayed by plaintiffs in the first instance but recovered from defendant as costs in execution.
And substituting for them:
This case be remanded to the trial Court to ascertain and decree a propel sum to the plaintiffs 83 and by way of compensation for the encroachment.
5. The appellant must pay the costs of this appeal.
6. I agree.