Deoki Nandan, J.
1. This is a defendant's second appeal from a decree directing the defendant appellant and the defendant-respondent to remove the construction which lay in plot No. 187 of village Atardiha in district Deoria. The site plan prepared by an Advocate Commissioner, paper No. 49-C was made part of the trial court's decree. According to that site plan only the triangular portion denoted by the letters A F D lay within plot No. 187, while the rest of the construction shown by letters A B C F lay in plot No. 185. It may be here stated that of the entire construction A B C D the portion A E F D was claimed by the plaintiffs to be an encroachment of plot No. 187 and out of that only the triangular half portion shown by letters A F D was found by the Advocate Commissioner to be in plot No. 187. The lower appellate court confirmed that decree; hence this second appeal.
2. The plaintiffs' case was that having purchased plot No. 185/1 the two defendants were laving foundations of their house and in the course of doing so, they had encroached upon the portion A B C D of the land of plot No. 187 of which they were the bhumidhars, having purchased the same for Rs. 600/- from Moti Lal and Moti Chand, who were sirdars but had acquired bhumidhari rights before selling it to the plaintiffs.
3. The only question involved in the case was about the delineation of the boundary between the plaintiffs' plot No. 187 and the defendants plot No. 185-1. Since an interim injunction was prayed for by the plaintiffs and an ad interim injunction was issued by the trial court, a commission was issued to an Advocate Commissioner for service of the interim injunction on the defendants and also for survey and preparation of a site plan to scale. The plaintiffs filed four documents along with the plaint. The first two of them were extracts from Khatauni for 1370F, and a copy of the settlement map of the plots 185 and 187 along with certain other surrounding plots for purposes of survey. That commission was issued to Shri Nawal Kishore Misra,Advocate, who surveyed the spot on 6th Sept., 1965 and submitted his report and site plan to the court. On the basis of the measurements made by Shri Nawal Kishore Misra, Advocate Commissioner, at the site with the help of the certified copy of the settlement map of 1915-16 and the site plan prepared by him, he reported that, on plotting the northwestern corner of the house in dispute lay somewhat in the disputed land, that is, plot No. 187.
Neither of the two parties were satisfied with the survey made by Shri Nawal Kishore Misra, Advocate Commissioner and the report submitted by him. The defendant appellant objected that the distance between the fixed points F1 and F2 as shown in the settlement map was 13 Jaribs, 19 Karis. That did not tally with the distance between those points when measured at site. There was a difference of 15 Karis between the two; therefore, a correct map could not be prepared on the basis of those fixed points. The further objection was that the distance between F2 and C2 was 11 Jaribs, but was shown as 10 Jaribs and 90 Karis, and that between Fl and C1 was 6 Jaribs but was shown was 5 Jaribs, 85 Karis, by the Commissioner. It was said that on correct plotting and measurements the whole of the house would be found to lie in plot No. 185 and no pan of it would be found to lie on plot No. 187. The plaintiffs' objection to the Commissioner's map and report was not so precise. They only said that it was against the farts at site and was liable to be rejected. It was claimed that the difference between the fixed points taken by the Commissioner and that shown by the maps was 25 Karis and that, therefore, the Commissioner had reached a wrong conclusion and his report and map was liable to be rejected. By an order dated 8th Dec., 1965 the trial court ordered the withdrawal of the temporary injunction after hearing the parties with the observation that the constructions are partly raised; that the suit is for demolition and possession, and that the defendants may complete the constructions at their risk. By an order dated 25th Jan., 1966 the court ordered that the Commissioner's report and the map (paper Nos. 13-C. 14-C and 15-C) be set aside, with the observation that the parties had challenged the measurement done by the Commissioner and that they agree that it was wrong.
A fresh survey commission was issued to Shri Haribansh Prasad Misra and another certified ropy of the settlement map for the year 1915-16 of the plots in question, obtained from the Consolidation Officer, was filed by the plaintiff's with the allegation that the certified copy which had been filed earlier had been prepared in the Tahsil from the cloth map, while the map on sheet had been sent to the consolidation authorities; that the cloth map did not tally with the site because of shrinkage, and the certified copy obtained from the consolidation authorities was from the sheet map, which was correct according to the site and may, therefore, be used for the purposes of survey. The trial court allowed that application and Shri Haribansh Prasad Misra submitted a report and a map according to which almost the whole area of the construction A B C D was found to be an encroachment on plot No. 187, as claimed by the plaintiffs. The defendant appellant filed a detailed objection to this map and report. His objections were that the measurements were made by the Commissioner without any information to him that the certified copy of the settlement map obtained from the Consolidation Office could not have been preferred to the certified copy of the settlement map issued by the Collectorate, and the distance between the two fixed points was obviously different in the two maps; that Shri Nawal Kishore Misra to whom commission had been issued earlier had found the distance between the two fixed points to be 14 Jaribs and 5 Karis while the present Commissioner had found the distance between the fixed points to be 14 Jaribs and 30 Karis, which was again false, as the distance between the two fixed points was in fact 14 Jaribs and 18 Karis.
The correctness of the plotting was also challenged. It was said that the distance of the north-eastern corner of the construction from the diagonal C-2 was taken to be 7 Jaribs, 32 Karis but was in fact 7 Jaribs and 42 Karis, and the distance between the diagonal ; C-I and the north-eastern comer was 7 Jaribs and 70 Karis and not 6 Jaribs and 56 Karis. On 15th, July, 1966 the trial court observed that there was basic difference in the distance between the fixed points shown in the two certified copies of the settlement map on the re-cord, and in order to check the same it had summoned the original map. The map from the consolidation office was received on 19th August, 1966 and the trial court found that there was no difference in the copy issued and the original brought obviously from the consolidation office. An additional objection to the correctness of the survey, supported by an affidavit, was thereupon filed by the defendant appellant on 19th September, 1966. This objection and affidavit was based on measurements made by Shri Shyam Badan Lal Vakil. The following were the differences pointed out:
Measurement according to theCommissioner's field-book.
Measurement found on test
Distance between F1 to 14-30 F2.
to the south-eastern corner ofthe house.
to the north-eastern corner ofthe house.
to the north-eastern corner ofthe house.
Area of plot No.187 = .26According to the settlement map .29
A counter-affidavit dated 22nd Sept., 1966 was field on behalf of the plaintiffs endorsing the correctness of the measurements made by the Commissioner. The trial court took up this report for consideration on 26th Oct., 1966 and passed the following order:
'Commissioner is directed to re-visit the spot and verify the measurements done by him in the light of the affidavit and counter-affidavit filed by the parties and report within 20 days. Defendants' objection will be decided after the additional report of the Commissioner.'
The Commissioner re-visited the spot and made fresh measurements which did not tally with the measurements made earlier but the Commissioner stated in his report dated 16th Nov., 1966 that at the time of his first visit there was no crop or any obstacle in between the fixed points the chandas and the construction in suit, but at the time of his second visit there was Arhar crop standing in between the fixed points the Chandas and the construction and therefore, there was a difference of 5 links between C2 and the north-eastern corner of the construction in suit. TheCommissioner stated that his previous field book was correct and according to his map and measurements the area of plot No. 187 was 26496 sq. links. The trial court took up the matter for consideration on 24th Jan., 1967 and passed the following order:
'Commissioner has admitted that there was some mistake in the two measurements. For avoiding any mistake I set aside the map and report. The fresh measurement will be done after the cutting of the crop in March.
Report by the Commissioner after fresh measurement by 8-4-67. He will get Rs. 25/- as fee from the plaintiff.'
The Commissioner re-visited the spot on 24th March, 1967 and the result of the measurement made by him this time was again different from the two measurements made earlier. The area over which the constructions were found to be an encroachment on plot No. 187 was reduced almost to half of what had been found by his earlier report. The defendant-appellant again filed detailed objections and an affidavit in support of them. The correctness of the measurement made by the Commissioner was again challenged, in addition to the distance between the fixed points. The plaintiffs by a counter-affidavit dated 20th May, 1967 supported the measurements made by the Commissioner. The court took up the Commissioner's report and map for consideration and confirmed it by the following order on 26th May, 1967:
'There are two affidavits filed by the defendants and in both different measurements about the fixed points were given. Now the defendant's learned counsel Sri S.B. Lal states that 54C affidavit is correct and the distance given between F1 and F2 two fixed points are correct. When 39C affidavit was filed, Commissioner went to the spot and checked the distance between two fixedpoints. He gave report and denied the distance given by the defendants in the affidavit. After the second report of the Commissioner, defendants changed the earlier stand and has now set up a new distance which in the light of the report of the Commissioner is untenable. I reject the second objection of the defendant and hold that the map prepared is correct and it is confirmed.'
The aforesaid orders and the several reports and maps on the record, only highlight the difficulty in correctly plotting out the boundary between plots Nos. 187 and 185 so as to find out whether any part of the defendant-appellant's house encroached upon plot No. 187. The very method adopted by the Commissioner in a rase like this was incorrect inasmuch as in the matter tike one in hand a correct conclusion could have been arrived at only if the length of the four sides of each of the two plots 185 and 187 was available in the revenue records, and all the four corners of each of the two plots were spotted out by survey. Trying to spot out only the north-eastern corner of plot No. 185 or the south-eastern corner of plot No. 187 was fraught with the grave risk that even a alight tilt in the angle of measurements with the kind of instruments available with our surveyors leads to differences which cannot be easily reconciled. After all, these distances are fixed and these maps are prepared not on the basis of measurements made by expert surveyors with infallible instruments of measurements, but by low paid revenue officials with outmoded instruments of measurements. These measurements and these boundaries, as shown in the revenue records, can only be called approximate. The very fact that there was a difference in the fixed points F1 and F2 in the two certified copies of the settlement map of 1915-16, one issued by the Tahsil, and the other by the Consolidation Office, highlights the risk of placing any absolute reliance on the correctness of these maps.
4. There is the further fact that the Advocate Commissioner Sri Haribansh Prasad Misra arrived at three different results on the basis of the measurements made by him firstly on 18th March, 1966, secondly on 10th Nov. 1966, and thirdly on 24th March, 1967 which also shows that the measurements made by him were not absolutely reliable. According to his last report, which was confirmed by the trial court, the area encroached upon is triangular and diagonally half of that claimed by the plaintiffs. In fact the north eastern corner of the defendants house could be said to be situate on the boundary between plots Nos. 187 and 185. The Commissioner has not specified the distance between FD DA and AF on the map prepared by him which forms part of the decree of the trial court. The decree of the trial court also does not specify the exact dimensions of the walls which are to be demolished according to the decree.
5. It was under these circumstances that when the appeal was first heard by me I felt that the two courts below ought not to have ordered demolition of any part of the constructions already raised by the defendants, or even if a corner of the house encroaches upon the plaintiff's land, payment of compensation measured by the value of the land encroached upon would be adequate compensation in this case. It is not a case where the plaintiff's right of way, or light, or any other user for which they might have been using the land, was obstructed or interfered with in any manner. The bona fides of the defendants that they never intended to encroach upon the plaintiff's land are clear from the very fact that on the first commission issued ex parte at the instance of the plaintiffs only a minute corner of the wall was found to be cutting across the boundary line between plots Nos. 187 and 185. The first report of the commission issued ex parte at the plaintiff's instance was much more favourable to the defendants than the subsequent reports. It is a different matter that Shri Haribansh Prasad Misra arrived at results wholly in favour of the plaintiffs on his first survey, but on verification he had to admit that those measurements were wrong. He said that the difference had arisen due to standing Arhar crops, yet in the third survey the measurements were different from those found at the first survey. The reasons given by the trial court for confirming the Commissioner's report are irrational. The correctness of the Commissioner's report did not depend on what the defendant appellant said or did not say in his affidavits. The defendant-appellant was guided by the opinion of the experts employed by Mm to make the measurements and honestly put forth the information received by him on the basis of the measurements made by the expert employed by him. The plaintiff's affidavits on the other hand blindly supported the correctness of the measurements made by the Commissioner, although they were different each time. It was the plaintiff's affidavits which were wrong because the measurements made by the Commissioner were different from each other. The defendant-appellant could not be blamed for the differences in the measurements given in his affidavits for those differences, were the result of differences in the measurements made by the experts on different occasions.
6. For all these reasons, implicit reliance could not be placed on the results arrived at by the Advocate Commissioner Shri Haribansh Prasad Misra into of the fact that his report was confirmed by the trial court. The appeal was heard by me for the first time on 16th December, 1981. Dining the course of the hearing learned counsel for the defendant-appellant made an offer on his behalf to pay Rs. 600/- as damages in substitution of the decree for mandatory injunction that had been passed against him and in the alternative even to give an equal area of land from his plot contiguous to the plaintiff's plot No. 167 and the further sum of Rs. 200/- as damages. Mr. T.P. Singh was the Advocate appearing for the plaintiff-respondents. He was asked whether the said offer would be acceptable to his client, on which he stated that he would need time to take instructions. After I had orally ordered the grant of three weeks time to Mr. T.P. Singh to obtain instructions, he said that he wanted the appeal to be heard on the merits and did not like the attitude of the Court in compelling people to enter into compromise, I thereupon directed the hearing of the appeal to proceed but Mr. T.P. Singh walked out of the Court saying that he did not want to argue the case. Since the plaintiff-respondents' other counsel Mr. M.P. Singh reported no instructions, I directed issue of notice to the plaintiff-respondents to put in appearance in this Court and to answer the appeal either personally or through counsel as they may desire. The notice was sent to the plaintiff-respondents by registered post and Mr. Ratnakar Chaudhary put in appearance for respondents Nos. 5, 6 and 7. The service report, however, showed that respondent No. 1 was dead, his heirs were thereafter substituted, and the appeal was again heard by me on 29th July. 1983 at some length. I thereupon passed the following order ;
'Having heard this appeal for some time and having considered the matter in the light of the authorities cited at the Bar, I am prima facie of the opinion that this is a fit case where a court should, in exercise of its discretion, award compensation in place of the decree for demolition. Under the circumstances, it has become necessary to allow time to the plaintiff to amend the plaint by claiming damages in addition to the relief for mandatory injunction. Under the proviso to Sub-section (2) of Section 40 of the Specific Relief Act. Learned counsel prayed for three week's time to take further steps after obtaining instructions in the matter. I have also to bring on the record the offer made by the learned counsel for the defendant-appellant today in Court that the defendant-appellant is prepared to pay Rs. 1200/-, as damages in substitution of the decree for mandatory injunction. The learned counsel for the plaintiff respondent may communicate that offer also to his client and take instructions in respect of the same.
Let it on the 19th August, 1963'.
7. When the appeal was taken up on 19th August, 1983, instead of moving an application for amendment of the plaint for which time had been allowed by the above order dated 29th July, 1983, an application was moved for one month's time to produce exemplars, showing that the actual market value of the land encroached upon is not less than Rupees 35,000/-. That application was rejected by the order passed thereon mainly on the ground that a question of determination of the market value of the land encroached upon could arise only if the plaint was amended claiming damages in substitution of or in addition to the relief of mandatory injunction. When the hearing of the appeal was resumed, Mr. Ratnakar Chaudhary left the Court saying that he did not want to argue anything further in the appeal and wanted time to move the Supreme Court against the orders passed by me. The authorities cited by him on 29th July, 1983 in support of his contention that this Court should not interfere with the decree for demolition that had already been passed by the two courts below must now be noticed.
In Bodi Reddy v. Appu Coundan : (1970)2MLJ577 the view taken by a learned single Judge of Madras High Court was that in a suit for possession of property in the occupation of a trespasser with the incidental relief of mandatory injunction directing the trespasser to demolish the construction put up by him, the plaintiff is entitled to succeed once he has established his title and also the fact that he has been in possession of the property within 12 years from the date of the suit, and he is not prevented by the principle of equitable estoppel from asserting his title to the suit property. It was further held that simply because the plaintiff has prayed for a mandatory injunction as incidental to the relief of recovery of possession, there is no discretion vested in the Court to deny delivery of possession to the plaintiff and instead, to award compensation to him, and once the suit is within time, the doctrine of laches or acquiescence has no place to defeat the right of the plaintiff to obtain the relief in the suit. It was finally held that unless acquiescence amounting to equitable estoppel is established, the plaintiff cannot be denied the relief of possession, which he has asked for. In the present suit the claim of the relief of possession though originally made in the plaint was expressly deleted by amendment and the only relief that has remained after amendment of the plaint is for demolition. It appears that the amendment was made and the relief of possession was deleted to bring the suit within the jurisdiction of the civil court, for the plaintiff claimed that he was a bhumidhar of the land in suit and a suit for possession over bhumidhari land obviously lay in the revenue court. The said decision of the learned single Judge of the Madras High Court is thus not applicable to the facts of the case before me inasmuch as the suit here is a plain and simple suit for mandatory injunction, by way of demolition, and the principle on which the decision of the learned single Judge of the Madras High Court turned was that the discretion to award compensation instead of ordering demolition was given to a court only in a case where the relief of Injunction was sought and not in a case where the main relief was of pos-session, and demolition was asked for only by way of an 'incidental relief.
The next case relied upon by Mr. Rat-nakar Chaudhary was that of Bai Sam-rat v. Sardarsang Hamabhai : (1911)13BOMLR905 . It was held in that case that 'where the actual invasion of a right and other circumstances of the case show that the invasion is likely to continue, the proper remedy in such a case is injunction and to say that the plaintiff ought to sue for damages every time that the right is invaded is to drive him to a multiplicity of suits'. The facts of this case were entirely distinguishable. The next case cited was Nidamarti Jaladurga Prasadarayudu v. Ladooram Sowear : AIR1936Mad687 . A learned single Judge of the Madras High Court ruled therein as under:--
'Now it is a statutory rule that an injunction should only be granted when pecuniary compensation would not afford adequate relief. But I do not think it follows therefrom that a Court has always the power to grant pecuniary compensation for a wrong whenever an injunction is asked for. The Courts have recognised that, when the issue of a mandatory injunction would involve the removal of a completed structure which entails no inconvenience and only a slight invasion of the plaintiff's rights, not committed wantonly or after protest, pecuniary compensation is the more appropriate remedy.'
The learned Judge cited a Bombay case Lalji Dayal v. Vishvanath Prabhuram Vaidya (AIR 1929 Bom 137). It was further observed that possession had also been claimed, and it was in these circumstances that the learned Judge held that monetary compensation in lieu of mandatory injunction was not the appropriate relief. But the principle remains and the ruling of the Bombay High Court in Lalji Dayal v. Vishvanath Prabhuram Vaidya shows that if the dis-honesty of purpose or knowledge of trespass could be brought home to the defendant before he completed the construction in suit, it would certainly be a case for a mandatory injunction and not for compensation. Another case reported at page 94 of the same volume of AIR 1929 Bom : Ardeshir Jivanji Mistri v. Aimai Kuvarji : was also cited before me. That was a case of a building erected on a portion of public highway afternotice from the plaintiff, and is thusclearly distinguishable.
8. Having considered the facts of the present case in the light of the aforesaid rulings cited by Mr. Ratnakar Chaudhary for the respondent, and two decisions given by me earlier : (1) Mohan Singh v. Danvir Singh (1980 All LJ 78); and (2) Raghunandan v. Mewa Lal (1982 All LJ 958); I find that this was not a fit case in which demolition of any part of the constructions raised by the defendants could have been ordered, even if it were found positively that the northwestern corner thereof encroached upon a part of the plaintiffs land. There was great difficulty in fixing the boundary and it could not be said that the defendants went on with the construction only with the knowledge that the constructions amounted to a trespass on the plaintiff's land. The bona fides of the defendants were established by the fact that there was almost no encroachment according to the first Commissioner's report and the encroachment found even on the basis of the last report of the Commissioner, which was confirmed in the circumstances detailed in this judgment, was very minor; and since the plaintiffs had also recently purchased the land it could not be said that pecuniary compensation was not adequate remedy for the encroachment, if any. Even the fact of encroachment was very doubtful. If the court had acceded to the defendant-appellant's request for issue of another commission, it might be that the result arrived at by Shri Haribansh Prasad Misra, would have been proved to be wrong. At any rate the result arrived at by him could not be said to be infallible in view of the difference in the distance between the fixed points as disclosed by the two certified copies of the settlement map of 1915-16.
9. The plaintiff-respondents, however, chose not to take advantage of the offers made by the defendant-appellant, and even if they were not satisfied with the amount offered by the defendant-appellant, they chose not to apply for amendment of the plaint for claiming the amount of compensation, which according to them would have been adequate, in case the court came to the finding that mandatory injunction for demolition of the constructions raised by the defendants should not have been issued in the present case. The court cannot grantcompensation in lieu of mandatory injunction unless it is claimed in the plaint in accordance with the rule laid down under Sub-section (2) of Section 40 of the Specific Relief Act, 1963. The Court allowed the plaintiffs an opportunity to amend the plaint under the proviso to that provision, but the plaintiffs failed to avail of that opportunity. Under the circumstances the Court has no option but to dismiss the suit.
10. In the result the appeal succeeds and is allowed. The judgments and decree under appeal are set aside. The plaintiff's suit is dismissed, but in the circumstances, I leave the parties to bear their own costs throughout.