1. The facts of the suit out of which this appeal has arisen are practically all admitted and are as follows:
The plaintiffs and defendants Nos. 9 to 12 are the appellants in this Court. Defendants Nos. 9 to 12 being away from the district were made pro forma defendants. They and the plaintiffs possessed the same right in the property in suit. The predecessors-in title of the plaintiffs and defendants Nos. 9 to 12 mortgaged plot No. 1763 which was their tenancy (presumably tenancy at fixed rate) for a period of 20 years in favour of the predecessors-in-title of defendants Nos. 1-8. This mortgage was executed on the 27th of June, 1901 and was redeemed on 22nd of June, 1921. The plaintiffs came to Court with the allegation that some six months before the institution of the suit the defendants encroached upon a portion of plot No. 1763 and built a house upon the same. They asked for the demolition of the construction and for the restoration of the site to its original position. Of course, the suit involved a claim for the recovery of possession.
2. The defence was that the building was ancient one, that no portion of the land had been encroached upon and that the suit was due to the fact that the defendants refused to allow a redemption of the mortgage before the expiry of the term.
3. The Court of first instance found that 1 dhurs of land has been encroached upon by the defendants' building and that the defendants constructed the building some 12 years before the institution of the suit. On these findings the learned Munsif gave a decree for Rs. 10 by way of compensation and dismissed the rest of the claim. On appeal this decision was affirmed.
4. The learned Subordinate Judge found the following:
The truth is only so much that when the house was built, plaintiffs never thought that defendants were encroaching and defendants never thought that they were doing anything wrong. Now after 12 years when the time for redemption arrived plaintiffs want to take their pound of flesh. You will find in the map that the house is a large one and a very small portion of it lies in plaintiffs' area.
5. The learned Subordinate Judge applying the principle of acquiescence affirmed the decree of the first Court.
6. In this Court it is contended on the authority of the Privy Council case Beni Ram v. Kundan Lal (1899) 21 All. 496 which has also been cited by the learned Subordinate Judge that the rule of acquiescence does not apply to the facts of the case and that the plaintiff were entitled to have their land restored to them.
7. The Counsel for the respondents cited two cases namely Shama Charan v. Babu Lal Misr (1904) A.W.N. 70 and Hajj Syed Muhammad v. Gulab Rai (1898) 20 All. 345.
8. The principle of acquiescence has been discussed by their Lordships of the Privy Council at page 502 in the case of Beni Ram v. Kundan Lal (1899) 21 All. 496 already quoted. Although this Court in the case of Beni Ram v. Kundan Lal (1899) 21 All. 496 came to the conclusion that the plaintiffs were bound by the principle of acquiescence, their Lordships of the Privy Council found themselves unable to agree with the view. In that case it appears that the predecessors-in-title of the defendants had taken a lease for a definite form of a certain piece of land. They did not use the land for which they had taken it. After a few years they went on erecting buildings on the site. The buildings were of a permanent nature. On the lessees suing for recovery of possession after the expiry of the term of the lease it was urged on behalf of the lessees that the lessors never having objected to the erection of permanent buildings they were barred by the principle of acquiescence from maintaining the suit. Their Lordships of the Privy Council pointed out that the defendants knew that they were holding for a definite term, and that they knew that they were entitled to erect any building they liked on the site provided they restored the land to its original condition after the expiry of the term of the lease. In the circumstances it was hold that the principle of acquiescence would not apply.
9. It appears to me that the principle of the decision of Beni Ram a case applies with full force to the facts of the case before me. In this case, the parties who were in possession were the mortgagees. Under the law in force, namely under T.P. Act, (Section 76) it is the duty of the mortgagee when he takes possession of the mortgaged property to manage it as a parson of ordinary prudence would manage it if it were his own. This implies that a duty is cast on the manager to see that the property is not lost by any encroachment. Further the same rule lays down that the mortgagee in possession is not to commit an act which is destructive or permanently injurious to the property. It cannot, therefore, be denied that the defendants so long as they were in possession as mortgagees, so to say, were trustees for the plaintiffs and were bound to protect the plaintiffs' rights. So long as the mortgagees were in possession it cannot be expected that the mortgagors would be going about inspecting the land mortgaged in order to see that it was well taken care of. The mortgage was for a definite period and during that period the mortgagees were entitled to use the land in any way they pleased provided they restored it to the same condition in which it was when the mortgage was made. No question of acquiescence in the circumstances can arise to bar the plaintiffs' suit.
10. The cases cited by the learned Counsel for the respondents can easily be distinguished from the case before this Court. The decisions were given on the peculiar facts involved in them. In the case of Haji Syed Muhammad v. Gulab Rai (1898) 20 All. 345 it was found that the plaintiff was not entitled to proprietary possession claimed by him but he had only a right of user over it. The defendant had raised the construction some 2 years before the institution of the suit. In the circumstances this Court refused to grant a mandatory injunction. In this case the plaintiffs are tenants of the land and they are entitled to be put in physical possession of the same. In the case of Shama Charan v. Baku Lal Misr (1904) A.W.N. 70 the owners of land lived within a few yards of the building and raised no opposition to the construction that was going on before their very face. In that case it might very well ba said that the plaintiffs were bound to guard their own property and where it was encroached upon they were bound to tell the trespassers that they were under a mistaken idea that the land was theirs. In the case before this Court the defendants were bound to look after The interest of the plaintiffs and plaintiffs wore under no obligation to look after their own property so long as the defendants were to do the same for them.
11. As regards compensation it has been held and I agree with the view that where immovable property is trespassed upon, a money compensation is not the proper remedy to the plaintiff. This view was taken in the case of Jetha Lal Hira Chand v. Lalabhai Dalppatbhai (1904) 28 Bom. 298 and in the case of Gang a Din v. Jagat Tiwari (1914) 12 A.L.J. 1026. The result is that plaintiffs' claim must succeed. I allow the appeal, set aside the decrees of the Courts below and decree the plaintiffs' suit with costs throughout. I allow the defendants sixty days from this date to remove the materials. The plan prepared by the Commissioner B. Bahadur Lal will be made a part of the decree and will be taken as indicating the extent of the land encroached upon.