Hari Swarup, J.
1. This is a defendant's appeal arising out of a suit for demolition of a projection. The plaintiff's case was that the projection in the form of a 'chhajja' made by the defendants extends upto the staircase belonging to the plaintiff. On that basis she claimed the decree. The defence was that there was no encroachment and, in the alternative, it was pleaded that the new chhajja had been built only to replace the old wooden chhajja. The trial court found the defendant's case proved and hence dismissed the suit. The appellate court has allowed the plaintiff's appeal and decreed the suit for removal of that part of the projection which extended over the staircase belonging to the plaintiff as indicated in the plaint map. The defendants have filed the second appeal.
2. The lower appellate court has reversed the findings of fact recorded by the trial court about the extension of the chhajja over the plaintiff's land and about the replacement of the old chhajja by the new one. According to the findings of the appellate court there was no wooden chhajja which may have been replaced by the defendants. The other finding is that the portion of the chhajja projects over the stairs belonging to the plaintiff. On these findings the court below has granted the relief.
3. Learned counsel for the appellants has contended that even if the projection extended a little beyond the land belonging to the defendant's and encroached and extended a little over the land belonging to the plaintiff, the court should not in exercise of its discretion have granted the relief. In support of his contention learned counsel relied on a decision of the Madras High Court in Krishnan Pillai v. Kilesathammal : AIR1928Mad810 . That was a case, howeverwhere the dispute related to a land which was the common property of both the parties. The land was used 'by both the parties only as a passage and the construction did not interfere with the user of the passage. The principle, which applies to a jointly owned land, cannot be applied to a case where the defendant has no right in the land and the plaintiff is the sole owner thereof. In a case of joint ownership both the parties have the right of use and no one can prevent the other from using it in the manner he likes unless it is equitable to do so. In a case where the plaintiff is the sole owner, the defendant-trespasser can claim no such right. Learned counsel contended that will not apply as the trespass is only in the air by way of projection. That will make no difference at least in the present case because the projection is only at a short height from the land. It is not a case where the projection is hundreds of feet above the ground level. A person owning the land has a right to claim open air upto a reasonable height. The present projection is within the reasonable height. Section 39 of the Specific Relief Act, 1963, is in the same terms as Section 55 of the Specific Relief Act, 1877, Section 55 of that Act provided:'
'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.''
Illustration (b) to Section 55 of the old Act was :
'A builds a house with eaves projecting over B's land. B may sue for an injunction to pull down so much of the eaves as so project.'
This illustration exactly covers the point in the present case.
4. The contention of the learned counsel is that the Court may award compensation to the plaintiff instead of awarding a decree for mandatory injunction. The contention is that the plaintiff can get a decree for injunction only if she shows special damages. I am unable to accept the contention because the plaintiff is entitled to get the injunction on the basis of the injury caused and not on the basis of special damages. Damages in lieu of injunction can be granted interms of Section 40 of the Specific Relief Act, 1963. That provides:
'(1) The plaintiff in a suit for perpetual Injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to or in substitution for, such injunction and the court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:
Provided that where no such damages have been claimed in the plaint the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
The language of Section 40 makes it clear that it is for the plaintiff to claim damages in lieu of injunction. If she does not so claim, the question of awarding damages does not normally arise. Moreover, injunction in a case of clear trespass over another's land can be refused and compensation awarded only when the equity is in favour of the defendant which will mean that the defendant must establish special circumstances for not issuing an injunction. In the present case, no such thing has been proved so as to disentitle the plaintiff from getting the relief. The decree of the lower appellate court cannot, therefore, be said to be erroneous on this ground.
5. Learned counsel for the appellantsalso contended that the finding recorded by the appellate court reversing that of the trial court to the effect that the projection made by the defendants extended over the land belonging to the plaintiff is vitiated in law. In the grounds of appeal it has been stated that the finding is against the weight of evidence. It is not possible to disregard a finding of fact on such a ground as this court in second appeal does not weigh evidence, Learned counsel then contended that the finding is vitiated because, the admissions made by the plaintiff's own witnesses had not been taken into account by the appellate court. He has, however, been unable to point out any such admission, He then contended that the Commissioner's report has been wrongly relied upon. The appellate court has pointed out that the defendants had filed no objection to the Commissioner's report. He has thought fit to rely upon it and his reliance cannot be said to suffer from any error of law so as to vitiate the finding of fact recorded by him.
6. Once the finding is that the defendant's projection (chhajja) extends over the land belonging to the plaintiff, the plaintiff will be entitled to get a decree for mandatory injunction. The decree passed by the court below cannot, therefore, be held to suffer from any error of law.
The appeal accordingly fails and is dismissed with costs.