M.M. Ismail, J.
1. S.A. No. 1113 of 1966.--This appeal arises out of a suit filed by the appellant herein for declaration of his title to and possession of a small extent of property from the respondent herein and for injunctions, both permanent and mandatory. The appellant and the respondent are adjacent owners of the land, the appellant being the owner of the northern portion and the respondent being the owner of the southern portion. The case of the appellant was that in or about June, 1962, the respondent encroached upon a portion of his property by shifting his stone ridge towards the north. As soon as he came to know of the encroachment, he moved the Revenue Department and requested the officials to effect measurement of the boundary line and accordingly the boundary line was measured in November, 1962. The encroachment made by the respondent was made known to him. As the respondent did not remove the encroachment and surrender the encroached portion to the appellant, when requested to do so by him, the appellant instituted the suit. The respondent's case was that the disputed property did not belong either to the appellant or to the respondent, but belonged to the Government and the respondent did not encroach northwards by shifting the stone revetment, as alleged by the appellant. The learned District Munsif found that the disputed portion belonged to the appellant and the respondent had encroached upon an extent of 1 1/2 cents of land belonging to the appellant by shifting his stone ridge towards the north in or about June, 1962, and therefore the appellant was entitled to a decree declaring his title to the suit property and a permanent injunction restraining the respondent from in any manner interferring with the appellant's possession and enjoyment of the same and also a mandatory injunction directing the respondent to remove the stone wall put up by him on an extent of 1 1/2 cents of land and surrender possession of the same to the appellant within a period of one month, failing which the appellant would be at liberty to have the said encroachment removed through Court at the respondent's expense. Against this judgment and decree of the learned District Munsif, the respondent preferred an appeal and the same was disposed of by the learned Additional Subordinate Judge of Salem. The learned Additional Subordinate Judge agreed with the conclusion of the learned District Munsif that the disputed property belonged to the appellant and the respondent encroached upon an extent of 1 1/2 cents in the land belonging to the appellant herein. However, with regard to the relief to which the appellant was entitled, the learned Subordinate Judge took a different view. He pointed out that the portion encroached upon was not cultivated and even according to the appellant, it was a rocky portion and it was used as a pathway. He was of the view that if the respondent was directed to remove the stone revetment, great hardship would be caused to him. Therefore, the learned Additional Subordinate Judge recorded : ' Taking into consideration the fact that the plaintiff's (appellant's) revetment is to the north of the encroached portion and the encroached portion is only 1 1/2 cents, a negligible extent, and as this portion is not fit for cultivation and it is used as a pathway by the villagers, I think it will be equitable and right to direct the defendant (respondent) to pay Rs. 100 as compensation for the encroachment instead of directing him to remove the encroached portion'. In the result, he allowed the appeal of the respondent in part and modified; the decree of the trial Court by substituting the decree for payment of compensation of Rs. 100 instead of granting the reliefs which were granted by the learned District Munsif, it is against this judgment and decree, the present second appeal has been preferred by the plaintiff.
2. The case of the appellant is that on the facts and the circumstances of this case he is entitled to the grant of an injunction and the decree for possession as given by the learned District Munsif as a matter of right and the learned Subordinate Judge is wrong in granting a decree for compensation. The learned Counsel for the respondent on the other hand contends that the learned Subordinate Judge was right in exercising his discretion and granting a decree for compensation instead of a mandatory injunction and the exercise of that discretion should not be interfered with in the second appeal. The learned Counsel also sought to argue that the encroached portion really did not belong to the appellant and there is no finding by the learned Subordinate Judge that the respondent encroached upon a portion of the plaintiff's land in June, 1962, as held by the learned District Munsif. However, I am of the view that this alternative contention is not available to the respondent herein, since he has not preferred any cross-objections against the decree of the learned Subordinate Judge. The decree for payment of compensation is based upon the title of the appellant to the disputed land and therefore, if the respondent wanted to contest the finding of the learned Subordinate Judge with reference thereto, he should have done so by filing a memorandum of cross-objections and he cannot put forward any contention challenging the finding of the learned Subordinate Judge in this behalf by -way of supporting the decree for payment of compensation. With regard to the complaint that the learned Subordinate Judge did not record a finding that the encroachment was made only in June, 1962, I am of the view that a reading of the judgment of the learned Subordinate Judge leads to the inference that he concurred with the conclusion of the learned District Munsif in this behalf. Consequently, the only question that arises in the second appeal is, whether the learned Subordinate Judge was right in law in decreeing payment of compensation instead of granting the reliefs granted by the learned District Munsif.
3. S.A. No. 1128 of 1966: This second appeal also arises out of a suit instituted by the appellant for declaration of his title to the suit property and for a mandatory injunction directing the respondent to remove the latrine constructed by it and vacate the encroachment and deliver vacant possession of the same to the appellant, failing which to permit the appellant to have the same carried out through process of Court and recover the costs thereof from the respondent. The case of the respondent was that the suit property did not belong to the appellant, but it belonged to the Government and as such vested in the Panchayat and the Panchayat had a right to put up a latrine on the same. The learned District Munsif, who tried the suit, came to the conclusion that the appellant did not make out his title to the suit property and therefore he was not entitled to any relief. He came to the further conclusion that even if the property belonged to the appellant, he, by his conduct, had allowed the respondent-panchayat to spend moneys and put up construction at a huge cost and therefore he must be deemed to have acquiesced in the construction. For the purpose of understanding this alternative conclusion of the learned District Munsif, it is necessary to refer to the feet that the construction was put up in 1957, while the suit itself was instituted only in 1962, and it is this fact that was taken into account, when the learned District Munsif recorded his alternative finding. Against this judgment and decree of the learned District Munsif, the appellant preferred an appeal to the learned District Judge of Tiruchirapalli. The learned District Judge came to the conclusion that the suit property belonged to the appellant and therefore declared his title to the same. He also came to the further conclusion that the appellant was in possession of the suit property within 12 years from the date of the suit. Notwithstanding this conclusion, he was of the opinion that in view of the laches on his part, in not taking steps to prevent the latrine being constructed on the kind and he having come forward with the suit more than five years after the construction of the latrine he was not entitled to the mandatory injunction, but he would be entitled to damages. One ground that was urged before the learned District Judge on behalf of the appellant was that though the encroachment was only on a portion of the appellant's property, because the respondent-panchayat had constructed a public latrine on that portion, the other portion of his property, which is a house site became absolutely useless to the appellant as a house site and no residential house could be constructed in the vicinity of a public latrine. The learned District Judge recognised this hardship to the appellant and still he came to the conclusion that the appellant had knowledge of the construction of the latrine in January, 1957, itself and he did not file a suit and prevent the respondent from proceeding with the work of construction and therefore he was not entitled to a mandatory injunction, but he would be entitled to damages, which he fixed at Rs. 500. It is against this judgment and decree, the present second appeal has been preferred by the plaintiff in the suit. Here again, no crows-objection has been preferred by the respondent-panchayat challenging the finding of the learned District Judge that the appellant had title to the suit property and he was in possession thereof within 12 years prior to suit. Hence the only question that arises in this second appeal also is about the correctness of the decree of the learned District Judge awarding damages to the appellant instead of granting a decree for possession and mandatory injunction directing the respondent to demolish the latrine put. up by it on the land belonging to the appellant.
4. Thus, the question of law that arises in both the second appeals is the same and is disposed of by this common judgment.
5. Before proceeding further, I want to refer to one important aspect common to both the cases. The respective appellants in these second appeals in their plaints have prayed for declaration of their title to the suit property and for a mandatory injunction directing the respective respondents to remove the encroachment and surrender vacant possession of the lands to the appellants, failing which to permit the appellants to have the encroachments removed through Court at the cost of the respondents. Thus, in essence, in both the cases the suit was one for ejectment and the prayer for the grant of mandatory injunction was merely incidental. As a matter of fact, the learned District Munsif, who tried the suit in the latter of the second appeals realised this position and stated in his judgment that the suit itself was one for ejectment and the mandatory injunction was a consequential relief.
6. The case of the respondents in both these second appeals is that the grant of mandatory injunction is in the discretion of the Court and taking into consideration the facts and circumstances of a particular case and more specifically any delay or laches on the part of the appellants and the extent of injury or inconvenience caused to the appellants by the conduct of the respondents and the extent of injury or hardship that will be caused to the respondents by the grant of the mandatory injunction, it is always open to the Court to award damages instead of granting a mandatory injunction. The question for consideration is, whether the proposition for which the respondents contend applies to cases of this nature, whether on principle or of any authority.
7. Let me examine the position purely as a legal principle. If a plaintiff comes to C he Court with a prayer for declaration of his title to and recovery of possession of a property in the possession of the defendant, he is entitled to a decree in his favour, once he establishes his title and also the fact that he has been in possession of the' property within 12 years prior to the date of the suit. The fact that the property involved is of small value or is of no practical use to the plaintiff is wholly irrelevant to the grant of the relief to the plaintiff. Equally irrelevant is any consideration as to whether the defendant would be inconvenienced or subjected to any hardship by the grant of a decree in ejectment against him. It is a simple case of trespass or encroachment on the plaintiff's property and the defendant is entitled to no consideration, while granting relief to the plaintiff with reference to the wrong committed by the defendant. In such a case, if the defendant instead of simply occupying the land after his encroachment and trespass puts upon a construction, can his position be in any way better if it is to be held that simply because the defendant, in addition to committing trespass or encroachment, has put up a construction on the land and because of such construction, there is a discretion left in the Court either to grant a decree for possession after directing the defendant to demolish the construction or to award damages instead of directing such demolition, that will be placing such. a person in a better position for having aggravated his wrong by putting up a construction. In such a situation there can be no equitable consideration in favour of the defendant and as a matter of fact all notions of equity and justice will be opposed to any such contention. But the position may be different, if the plaintiff in such a situation comes to the Court and does not ask for possession but only asks for a mandatory injunction directing the defendant to demolish the construction. In that case, the Court may Very well take in : o account the factor that so long as the plaintiff does not ask for possession of his property ; it will make no difference to him whether the defendant continued in occupation of the plaintiff's property without putting up a construction or after putting up a construction and the question of demolition of the construction will arise only, when the plaintiff asks for possession and therefore damages may be awarded instead of a mandatory injunction directing the defendant to demolish the superstructure put up by him. As ,a matter of fact, in such a case, it may equally he argued that the suit itself for a bare mandatory injunction is not maintainable without the plaintiff having asked for possession
8. In Ewin Shauk Wa v. U. Po Nyun I.L.R.(1927) Rang. 404 the plaintiff filed a suit for a mandatory injunction directing the defendant to remove his rubber trees, a hut and brickpost standing on his rubber land. The lower Courts granted such an injunction. However, the High Court of Rangoon reversed that conclusion. The High Court observed:
Before a suit for a mandatory injunction can be filed there must been obligation on the part of the defendant to perform certain acts. In this case it is not alleged that the appellant has committed a breach of any obligation on his part. The case was merely one of trespass, and the respondent's (plaintiff's) remedy was to file a suit for possession of the land. I do not think that a suit for a mandatory injunction can be filed, without suing for possession of the land.
However, when the suit is for possession and mandatory injunction is asked for merely as an ancillary to the principal remedy of possession so that the defendant is directed to demolish the superstructure put up by him and surrender vacant possession of the land to the owner, no such consideration will apply and the plaintiff would be entitled to the relief he claims.
9. A prayer for a mandatory injunction may be made by a plaintiff in different situations. Broadly, it may be in two categories of cases. One is, where the defendant has trespassed on the plaintiff's land and put up a construction, the plaintiff, who is entitled to recover possession of his land, may in a suit for ejectment ask for a mandatory injunction as incidental to the principal relief which he has prayed for. In such a case, the encroacher who puts up the construction on another's land, not being entitled to the superstructure and the superstructure belonging to the person who owns the land, the plaintiff can be given complete relief by a simple decree for possession without there being any mandatory injunction against the defendant at all. The mandatory injunction in such a case is merely for the purpose of giving an opportunity to the trespasser to remove the superstructure put up by him on the land of the plaintiff and if the defendant does not want to avail himself of : that opportunity the plaintiff will not be the loser and in no way the plaintiff's right to the relief can be defeated and even in the absence of any mandatory injunction, the relief of possession will be complete. As a matter of fact in such cases it may not be quite appropriate to call the suit as one for mandatory injunction, but on the other hand, that will be a simple suit in ejectment against the trespasser and the mandatory injunction is merely incidental to the principal relief. In fact in The Municipal Committee, Nakodar v. Sadhu Ram and Ors. I.L.R. (1957) P.&H.; 638, a learned Judge of the Punjab High Court held that a suit for declaration of title in which a prayer for injunction has been made as auxiliary to the relief of declaration of the title is not a suit to which Section 54 of the Specific Relief Act will apply. The learned Judge pointed out that such was not a case in which the Court is free to uphold the title and yet in the exercise of its discretion refuse to grant the relief of injunction end the relief : of injunction cannot be claimed as a substantive relief independently of the declaration sought.
10. The second category is, where the defendant puts up a construction on his own land, but that construction interferes with certain legal right vesting in the plaintiff or interferes with any enjoyment by the plaintiff of his own property. It may happen that the plaintiff has a right of way over a piece of land and the defendant causes obstruction to the same or the plaintiff's ancient right to light and air interfered with by the defendant putting up a wall on his own land Equally that the plaintiff's right to support is sought to be removed or taken by some act on the part of the defendant or again some other right of easement which the plaintiff has is sought to be interfered with by the Act on the part of the defendant. In all these cases, the primary relief which the plaintiff can have in a suit instituted by him is the mandatory injunction directing the defendant to remove the construction put up by him, and the prayer for mandatory injunction in such a suit is ancillary nor incidental, but that is the only manner in which the injury suffered by the plaintiff can be remedied or rectified. Such suits can be very properly described as suits for injunction as suits for function as distinguished from the first category, namely suits in ejectment or for possession based on trespass or encroachment on the part of the defendant. Where the primary relief claimed is a mandatory injunction and the injunction having been originally an equitable relief and subsequently the grant thereof being in the discretion of the Court, it is certainly open to the Court to see whether the plaintiff could be adequately compensated by the award of damages and whether there are other circumstances present in the case to justify the award of damages to the plaintiff instead of granting a mandatory injunction having been originally an equitable relief and subsequently the grant thereof being in the discretion of the Court, it is certainly open to the Court to see whether the plaintiff could be adequately compensated by the award of damages and whether there and other circumstances present in the case to justify the award of damages comes to the conclusion that the injuries suffered by the plaintiff cannot be adequately compensated by the damages, the Court cannot escape from its obligation to grant a mandatory injection so as to give relief to the plaintiff. In the first category of suits, namely, where the plaintiff sues for possession of his property complaining of trespass committed by the defendant, it cannot be said that the injury suffered by the plaintiff can be adequately compensated by damages. As a matter of fact, the grant of damages in such an event will be to compulsorily purchase the plaintiff's property and vest it in the defendant, thereby to reward the wrongdoer with the very property in respect of which he committed the wrong, through the judicial process. Thus, in my opinion, whenever the plaintiff comes to the Court and prays for possession of his 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, there is not question of the Court exercising any discretion as to whether the mandatory injunction should be granted or award of damages alone would be sufficient and once the plaintiff has established his right to a decree for possession, that decree must follow irrespective of any consideration of laches, acquiescence., want of hardship or inconvenience to the plaintiff and any question of hardship to the defendant. The discretion is available only in suits where the plaintiff asks for an injunction against the defendant, not in respect of any trespass or encroachment committed by the defendant on the plaintiff's property itself, but in respect of any action done by the defendant on his own land or on a common property or on a public property interfering with the enjoyment of the plaintiff of his own property. in a suit in which the plaintiff asks for relief on the basis of his title to the property,, the only circumstance in which the plaintiff may be denied the relief is when the principle of equitable estoppel will apply and even then it is not as if the Court declares the title of the plaintiff and denies the relief of possession to him in the exercise of its discretion, but prevents the plaintiff from asserting his title to the property itself on the basis that by his own conduct he has estopped himself from asserting any such right.
11. Let me now examine the position with reference to the authorities. This question of discretion of granting a mandatory injunction or awarding damages arose because of the peculiar procedure prevalent in England. A citizen can obtain the relief of injunction only in equity, but not in common law and therefore for that purpose he had to approach the Court of Chancery. On the other hand, if he wanted to obtain possession of his land, he will have to go to the common law Courts, with the result whenever a citizen approached the Court of Chancery for the issue-of a mandatory injunction, the Court either issued the injunction or relegated the plaintiff to an action at law. Only after Lord Cairns's Act 1858, the Chancery Courts had obtained jurisdiction to award damages in addition to or in substitution of an. injunction. The question of discretion thus arose, with reference to the Courts of Chancery. It must be remembered that the Courts of Chancery could not have given any relief of possession to a plaintiff which he had necessarily to obtain only in common law Courts. Therefore, the question of the Courts in England having a discretion whether to grant a mandatory injunction or to award damages in a case where the plaintiff' sues for possession on the basis of trespass could never have arisen. Even with regard to the discretion of the Courts of Chancery in this limited field, the law was:
It must be exercised so as to prevent the people being compelled to sell their property against their will at a valuation, or to prevent a defendant from doing a wrongful act and thinking that he car pay damages for it ; and where a breach of an express covenant is committed, either by the original covenant or by an assignee who is bound thereby, and causes substantial damage, the Court has no discretion to award damages in lieu of an injunction.' (Halsbury's Laws of England, Third Edition, Vol. 21, page 358).
12. In Dwell v. Pritchard (1856) L.R. 1 Ch. 244, the Master of the Rolls had held that the plaintiff was not entitled to any injunction because the works complained of had been entirely completed before the bill was filed. The Court of Appeal in Chancery held that there was no rule which prevented the Court from granting a mandatory injunction where the injury sought to be restrained had been completed before the filing of the bill and there was no difference in this respect between injury to easements and to other rights. Turner, L. .!., pointed out that he would not go so far as the Master of the Rolls appeared to have gone or to say that relief by way of injunction ought to have been refused in that case upon the mere ground that the damage had been completed before the bill was filed and the authorities led to the conclusion that every case of this nature must depend upon its own circumstances and the Court will not interfere by way of mandatory injunction, except in cases in which extreme, or at all events very serious, damages will ensue from its interference being withheld. That was a case which involved obstruction to the right of way and impediment to access of light and air.
13. Goodson v. Richardson (1874) L.R. 9 Ch. 221, involved laying of water pipes in the soil of a highway without the consent of the owner of the soil. An injunction to restrain the continuance of the pipes was granted, the owner of the soil not being left to his remedy at law and not being required to establish his right at law. The argument was that the owner of the soil was not entitled to any mandatory injunction because the roil under the highway was of no value to him and that his motive for applying to the Court was not connected with the enjoyment of his land. A strong Chancery Court of Appeal rejected such a. contention and confirmed the grant of injunction. Lord Selborene, L. C, stated:
I cannot look upon this case otherwise than as a deliberate and unlawful invasion by one man of another man's land for the purpose of a continuing trespass, which is in law, a series of trespasses from time to time, to the gain and profit of the trespasser, without the consent of the owner of the land; and it appears to me, as such to be a proper subject for injunction.
14. Dealing with the contention that the soil under the highway was of no value to the owner and no injury to his enjoyment of the land had been established the learned Lord Chancellor stated:
But with respect to the suggested absence of value of the land in its present situation , it is enough to say that the very fact that no interference of this kind can lawfully take place without his consent, and without a bargain with him, gives his interest in this land, even in a pecuniary point of view, precisely the value which that power of veto upon its use creates, when such use is to any other person desirable and an object sought to be obtained.
15. Chelfer v. City of London Electric Lighting Company (1895) 1 Ch. D. 287, was a case in which an action was brought complaining of nuisance created by the defendants by the vibration of their engines and the annoyance caused by the carrying on of their undertaking and for a mandatory injunction. The trial Judge held that the plaintiff was entitled only to damages and not to an injunction. But a strong Court of appeal reversed the said conclusion and held that injunction was the proper and appropriate relief. Lindley, L. J., said:
But in exercising the jurisdiction thus given attention ought to be paid to well-settled principles ; and ever since Lord Cairns' Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalizing wrongful acts ; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g., a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to proted(sic) by injunction an individual whose rights are being persistently infringed. Expropriation, even for a money consideration. is only justifiable when Parliament has sanctioned it.
16. In the same case, A. L. Smith, L. J., stated:
Many Judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights, by '.assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be.
17. It must be remembered that that was a case concerning a, nuisance and not a trespass on the plaintiff's property itself. Dealing with the argument that instead of an injunction damages should be awarded in that case, A.L. Smith, L. J., further pointed out:
Moreover, how are these injuries to be put into money, and upon what principle are these damages to be assessed so as to represent the continuing injury to the plaintiff? To guess at them is not assessing them at all.
In order to constitute a real assessment it appears to me that principle of purchasing the plaintiff's interest in his lease for the unexpired term will have to be adopted as the basis upon which the assessment is to be made, and, as I have before stated, this is never sanctioned by the Court at the instance of a tort-feasor.
18. The pinciples lad down by the Court of Appeal in Goodson v. Richardson (1874) L.R. 9 Ch. Ap. 221 : 43 L.J. Ch. 790 was applied in Harriott v. East Grinstead Gas and Water Company (1909) 1 Ch.D. 70, which involved again a trespass. An action was brought to restrain the defendant from laying pipes in connection which their new water works under a public footpath running along the plaintiff's land and the footpath itself was under the control and management of the plaintiffs. In that case an injunction was granted in favour of the plaintiffs.
19. Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. (1957) 2 All. E.R. 343, was a case in which the plaintiff, who is a tenant of one-storey shop, prayed for a mandatory injunction requiring the defendants to remove the advertisement sign adjoining the building, projecting some 8' into air space above the one-storey shop in his occupation. After elaborately conisdering the case law on the point Mc Nair, J., granted the injunction. In the course of the judgment, the learned Judge pointed out:
Cases in which an injunction has not been granted on the ground of hardship have, I believe, been mostly, cases in which there has been some accidental invasion of the plaintiff's rights.
Therefore, with reference to the cases in Englan, there had been no single authority laying down the principle that in the case of trespass or encroachment, when the plaintiff sues for possession of his land, the Court has any discretion in the matter and can grant damages in the place of mandatory injunction. On the other hand, they have taken the view that when there is a case of encroachment or trespass, it is a continuing trespass and the grant of damages in such a case instead of mandatory injunction will amount to legalising wrongful acts and no tort-feasor or wrongdoer is entitled to ask a Court to sanction his wrongful act by purchasing the plaintiff's rights by assessing damages in that behalf.
20. Coming to the authorities in India, Govind Venkaji Kulkarni v. Sadashiv Dharma Bhat and Anr. I.L.R.(1893) 17 Bom. 771, is a case where the plaintiff sued for a declaration of his title to and recovery of possession of certain portions of land on which the defendants had encroached by building verandhs. In a very short judgment, the Bombay High Court held:
Both the Courts below have found that the land in question belongs to the plaintiff; but subject, as the Court of appeal has found, to a right of access to the temple. Such being the findings as to the property in the land, the Courts could not compel the plaintiff to part with his legal rights and accept compensation against his will, however reasonable it might appear to be.
We must, therefore, reverse the decree of the Court below, except as to the order as to costs, and order the defendants to remove the verandahs complained of by the plaintiff.
Premji Jivan Bhata v. Haji Cassum Juma Ahmed I.L.R.(1896) 20 Bom. 298, was again a suit for recovery of possession and for removal of the building which the defendant had erected upon it. The Bombay High Court held:
It is well established law in England that if a stranger builds on the land of another, although believing it to be his own, the owner is entitled to recover the land with the building on it, unless there are special circumstances amounting to a standing by so as to induce the belief that the owner intended to forego his right or to an acquiescence in his building on the land.... This is also the law in India, with the exception that the party building on the land of another is allowed to remove the building.
As to delay in bringing a suit, we agree with the Madras High Court that it is not in itself sufficient to create an equity in favour of the person spending money on the land and to deprive the owner of his strict rights.--Ram Rao v. Raja Rao (1864) 2 Mad. H.C. Rep. 114. In the present case there are no circumstances creating such an equity, but on the contrary the plaintiff's notice to the defendant in March, 1889, informed him that he (the defendant) was laying the foundations of his new chawl on his (plaintiff's) land and required him to remove them. The cases relied on by the District Court are all light and air cases and have no bearing on the present question. As the removal of the building is optional with the defendant, and is for his benefit, a mandatory injunction to the defendant is not the right order to make.
The decree of the Court below must be, therefore, reversed, and an order made that the plaintiff do recover the land in question with liberty to the defendant forthwith to commence to remove his building on the said land and to restore the property to the condition in which it was when he took possession. The same to be completed within one year from the date of this decree. In default, the plaintiff to be at liberty to remove the same at the expense of the defendant.
This decision of the Bombay High Court is significant. It took the view, which I. have already expressed, namely, that in a suit for recovery of possession, the prayer for mandatory injunction is only for the benefit of the defendant and if the defendant has any objection to the same, a mandatory injunction should not be granted, but the plaintiff is entitled to a decree for possession, liberty being given to the defendant to remove the construction within a specified period and in the event of his failure to do so, the plaintiff being authorised to remove the same at the expense of the defendant.
21. Jethalal Hirachand Vakil v. Lalbhai Dalpatbhai Seth I.L.R.(1904) 28 Bom. 298 was a case in which the plaintiff brought a suit against the defendant praying that the defendant be restrained from interfering with his right to light and air and that he should be compelled to remove the superstructure that covered his abutment which was attached to this house. The defence was that the plaintiff had not acquired a prescriptive right to the easement of light and air, that the abutment was made recently on the plaintiff's land and the construction was not injurious to the abutment. The learned District Judge held that the plaintiff was entitled only to compensation and not injunction on the ground that what was proved was only a technical encroachment by the defendant, because ' a foot or so of ground has been taken to support the wall which divides the properties '. Dealing with such ground for awarding damages instead of injunction, the Bombay High Court stated:
But if the foot or so of ground so taken by the defendant belongs to the plaintiff, the act of the defendant is one of continuous trespass on the plaintiff's property and the wrongdoer cannot be heard to say that he has deprived the owner of only a. little and that of not much, use to the latter. To allow such a defence and on the strength of it to award compensation is to let a trespasser put a value or money's worth on another man's property and deprive him of it against his will. No doubt Section 54 of the Specific Relief Act lays down in effect that a perpetual injunction shall not be granted where the Court finds that the invasion by one man of another man's right to property is such that pecuniary compensation can afford adequate relief. But where a man builds on another man's property against the will of the latter or without his consent, the invasion is practically one where pecuniary compensation cannot be regarded as adequate relief. The owner is, in such a case, not only deprived of the property but he is also deprived permanently of such user of it as he is entitled to make. How are the damages to be estimated in such a case and how can it be said that an award of compensation can do justice to the owner who loses the property, and all opportunity besides of using it for purposes which he may consider profitable, or beneficial to himself?
After referring to the observations of Lord Selborne, L.C., in Goodson v. Richardson (1874) L.R. 9 Ch. Ap. 221 already extracted, the Bombay High Court proceeded to state:
And there he distinguished between such cases and cases of ancient lights and covenants. In the former one man appropriates to himself and uses another man's property ; in the latter one man does something upon his own property which exposes him to an action by another man. The Courts lean towards compensation in the latter class of cases because the wrong is done by the wrongdoer upon his own property. It would not have been a wrong but for the fact that his right of free user as owner happens to be subject to the right acquired by another man for the enjoyment of his property and restricting the absolute right of property of the former. In such a case when anything is done in violation of a right limiting another man's right of ownership, the Court naturally has to consider whether the violation can be compensated by damages. But it is a different thing when a man illegally builds upon another man's land or builds in such a way as to overhang a portion of it. There, to use the words of James, L.J., in Goodson v. Richardson (1874) L.R. 9 Ch. Ap. 221 he is taking that which was not his for the purpose of a profit to himself against the will of the real owner. That is taking another man's property improperly, both morally as well as legally '. Relief by way of compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. On no principle of law or equity is that allowable and the current of decisions whether here or in England is opposed to it.
Another ground on which the District Judge holds that the plaintiff is entitled not to a mandatory injunction but only to nominal damages is that he (the plaintiff) has failed to prove that the superstructure of the defendant so far as it overhangs the dhora (abutment) interferes with his light and air. But the plaintiff's failure to prove that the building causes any inconvenience to him is no valid ground for depriving him of his property. His right to recover it arises out of his ownership and stands apart from any practical injury done to other property of the plaintiff by the defendant's act of continuous trespass.
I have extracted from that judgment in extenso, since it is fully in accord with the general principles I have indicated in the earlier portion of this judgment.
22. Abdul Hossain v. Ram Charan Lal I.L.R. (1911) Cal. 607 was a case in which the plaintiff instituted a suit praying for a declaration of his right to a piece of land and for a mandatory injunction for the demolition of the wall put up by the defendant on the said land and for damages. It was found as a fact that the defendant had put up the wall on the plaintiff's land and thus there had been an unlawful encroachment. The Calcutta High Court held that the plaintiff was entitled to a mandatory injunction. The Court pointed out:
Not only has a trespass been committed, but the trespass is one which still continues and will hereafter continue to be committed as long as the wall remains in its present site.
and that being so, the proper remedy was by way of mandatory injunction.
23. The above decision was followed by another Bench of the Calcutta High Court in E.S. Levy and Ors. v. D.E. Ezra and Ors. I.L.R.(1906) Cal. 687.
24. As far as the Madras High Court is concerned, Abdul Rahim, J., and Phillips, J., differed in Somasundaram Chetty and Ors. v. Sabu alias Ramiah and Ors. : (1912)22MLJ62 . That was a case where the plaintiff sued for a mandatory injunction compelling the defendant to demolish 4 inches of his wall to which extent the plaintiff alleged that it encroached on his wall. The trial Court found that the encroachment was 2 inches and gave a decree accordingly. On appeal, the District Judge held that though it was clear that some light encroachment was made, it was not made out how much was the encroachment, that Rs. 10 should be awarded as damages and that the decree of the trial Court should be reversed. The plaintiff preferred the second appeal. In view of the finding of the learned District Judge that it was not made out how much was the encroachment, Abdur Rahim, J., was of the opinion that the District Judge must be directed to submit a fresh finding on the question as to what extent had the defendant's wall been built on the plaintiff's parapet wall. While calling for a finding, the learned Judge had expressed himself thus, with regard to the question of law ; (Since the observations of the learned Judge are directly in point, I am quoting from his judgement in extenso.)
What is urged in support of this view (the view of the District Judge) is that injunction is a discretionary remedy and should not be granted even in a case of trespass when no damage has been caused or the damage caused to the plaintiff is so small as to be negligible. Now there can be no doubt that injunction being a remedy in equity, the Court is vested with a discretion to grant or to refuse it according as the equity of the particular circumstances of a case may require. But that discretion has to be exercised on proper judicial grounds. Here is a case of continuous trespass practically amounting to ouster of the plaintiff from the land encroached upon, which it is found is the property of the plaintiffs and was in their possession at the time of encroachment. The plaintiffs are entitled to possession of the land free from the encroachment. What would be their remedy at law Ejectment, and also damages, if any, and not merely damages as appears to be assumed by the learned Judge, which assumption is also the basis of the arguments advanced in support of his judgment.
In addition to ejectment the plaintiffs would also be prima facie entitled to damages at least to the extent of the costs which have to be incurred to remove the structure if they did not prove any other damage. There may be cases of continuous trespass on a man's land in which no actual and present damage can be proved, but I see no warrant for the position that merely because no damage is proved therefore a trespasser cannot be ejected. Suppose I have a piece of waste land and a person with no sort of excuse or justification wrongfully takes possession of it and erects a building thereon without my knowledge, could it be said that I should not be allowed to eject the trespasser, because the land was bringing me no income. I am unable to show that I sustained any actual and present damage by the trespasser building on it. Let us go further and suppose the trespasser wishes to pay me a handsome rent and I choose to refuse it. To say that in such a case I should not be entitled to recover possession of my land would be striking at the foundation of rights of property. And yet that is the logical result of the view held by the lower appellate Court which the pleader for the respondents has strenuously supported. In a case like this the question might well be raised whether the proper remedy is ejectment or injunction, but the, respondents, for obvious reasons, raise no such question, for they would not be better off if the Court granted ejectment. In fact, as between ejectment and mandatory injunction, the latter would be more favourable to the respondents, for they might try, if possible, to remove so much of their wall as rests upon the plaintiffs' wall without destroying the rest of it, or they might perhaps remove the encroachment at a less cost than would be incurred by the appellants.
The above extract itself shows that the suit which was instituted by the plaintiffs in this case was not one for ejectment but merely for a mandatory injunction and even in that context, the learned Judge took the view that in the case of a continuous trespass, injunction will be the proper relief. Phillips, J., who constituted the other member of the Bench, took the view:
But as the Court is vested with a discretion under Section 54 of the Specific Relief Act it cannot be contended that an injunction must necessarily be granted against a trespass under all circumstances, for in exercising its discretion the Court cannot exclude all consideration of the extent of damages which would be caused to either party by refusing or granting the injunction.
Since Phillips, J., was confirming the decree of the District Judge, under Section 98. Code of Civil Procedure, the appeal itself was dismissed, notwithstanding the differing views of the learned Judges. Even if the view of Phillips, J., is taken to be the correct view, it should not be forgotten that the case which the learned Judge was dealing with was one for mere injunction and not for recovery of possession.
25. Tumula Peddaya alias Venkata Padmanabhan v. Koppula Chinna Appanna and Ors. (1913) M.W.N. 188 was a case in which the plaintiff prayed for an injunction on the ground that the defendant raised a wall on a site belonging to the plaintiff. The facts found were that the plaintiff objected to it, as soon as the raising of the wall was commenced, but the defendant persisted in raising the wall and the building and that soon after the wall was finished, the Court in which the plaintiff could have instituted the suit was closed and the defendant built his house during the holidays and that sometime after the reopening of the Court, the plaintiff instituted the suit. The argument which the Court had to deal with was that the Court can in no case grant a mandatory injunction, where the plaintiff did not come to Court before the completion of the building unlawfully constructed and that it was the imperative duty of the plaintiff to move the Court for a temporary injunction before the construction of the building was finished. A Bench of this Court (Sundara Iyer and Sadasiva Iyer, JJ.), held that there was no authority for such a proposition. The learned, Judges, have pointed out:
It is quite possible for the Court to come to the conclusion, in the circumstances of any particular case, that the plaintiff's conduct might be taken to show that the plaintiff was content with an action for damages but afterwards changed his mind to ask for a mandatory injunction and the Court might, in the circumstances where a waiver of a right to a site might be inferred in substitution for a claim for a damage, refuse a mandatory injunction. On the other hand, it would be a dangerous doctrine to lay down that a person by unlwafully trespassing on another's land might, if sufficiently diligent to complete his unlawful act before a suit could be instituted, successfully maintain that a mandatory injunction could not be granted.
This would put a premium upon deliberate defiance of other persons' rights of property and would enable a person to compulsorily acquire property belonging to another if his unlawful act is accompanied with promptness in completing it. The English decisions are favourably inclined in the matter of granting mandatory injunctions when the unlawful act does not merely obstruct proper enjoyment of plaintiff's rights of property, as by interference with light and air, but is calculated to deprive him of the property itself.
in this context, the learned Judges cited the decisions in Goodson v. Richardson (1874) L.R. 9 Ch. Ap. 221 and Marriott v. East Grimstead Gas and Water Company (1909) 1 Ch.D. 70. Here again I may point out that from the report, it is not clear whether the suit in that case was one in ejectment with an incidental relief for a mandatory injunction or one exclusively for a mandatory injunction.
26. The question again came to be considered by Wadsworth, J., in Nidamarti Jaladurga Prasadarayudu v. Ladooram Sowcar and Anr. : AIR1936Mad687 . In that case, the encroachment consisted of two--(1) a small portion of the defendants' kitchen measuring in all about 31/3 sq. yards ; and (2) 200 ft. of wall built by the defendants on a line which ran one or two feet inside the plaintiff's land. The findings of the lower Courts were that both the structures were built as a result of the uncertainty of the parties regarding their rights and that there was no protest at the time of the building, but that there was not such acquiescence in acts of trespass as would support a case of equitable estoppel. As to the kitchen, the trial Court, in view of all the circumstances and the smallness of the excess directed compensation at the rate of Rs. 10 per sq. yard to be paid to the appellant. But with regard to the encroachment by the construction of the wall, injunction was granted. The first appellate Court observing that the present position of the wall caused no practical inconvenience, that the defendants were particularly anxious for it to remain, and that no effective protest was made during its construction, set aside the decree for an injunction regarding the wall and granted Rs. 500 as compensation to the plaintiff. The second appeal was against such a decree. Wadsworth, J., pointed out:
Now it is a statutory rule that an injunction should only be granted when pecuniary compensation would not afford adequate relief. But ] 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 recognized 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.
After referred to the decision of the Bombay High Court in Lalji Doyal v. Viswanath Prabhuram Vaidya and Ors. A.I.R. 1929 Bom. 137 where a gallery projecting over the defendant's (a mistake for plaintiff's) land was allowed to remain on payment of compensation, an injunction being refused, the learned Judge proceeded to state:
I am inclined to think that on the analogy of this and similar cases, the trial Court's decree regarding the projecting coiner of the kitchen may be justified. But I am by no means convinced of the propriety of the lower appellate Court's decree regarding the wall, the effect of which is to enable the respondents by virtue of their encroachment to compel the appellant to cede title in a strip of land over 299 ft. long and of a width varying between 1 and 2 1/2 ft., including a number of trees. Of course, the injunction granted by the trial Court involves the removal of the wall and consequent expenses to respondents but the appellants sued for possession as well as for an injunction ; they have proved title and there is nothing except the inconvenience and expense to the respondents which has prevented the lower appellate Court from granting the injunction. I have not been referred to any case in which a similar compulsory acquisition of a considerable strip of land has been effected under the guise of monetary compensation in lieu of an injunction ; and I do not think that the lower appellate Court's decree in this respect is proper.
Thus, it will be seen that the suit with which Wadsworth, J., was dealing was one for possession as well as injunction on the basis of trespass. The learned Judge came to different conclusions with regard to respass by the construction of the kitchen and the trespass by the constructions of the wall. It is difficult to see how the general considerations referred to by the learned Judge with reference to the encroachment by the wall will not apply to the encroachment by the construction of the kitchen. The learned Judge appears to have proceeded on the basis that in respect of both the encroachments, a discretion is available, though he himself has pointed out the consequences of exercising a discretion in favour of a wrongdoer.
27. When the matter was taken up in appeal, in Ladooram Sowcar and Anr. v. Nidamarti Jaladurga Prasadarayudu (1938) 47 L.W. 255, a Bench of this Court (Pandrang Row and Abdur Rahman, JJ.), did not accept in any unqualified manner the conclusion of Wadsworth, J., with regard to discretion being available in such cases. The learned Judges pointed out:
Reference has been made to a number of cases and in particular to Pazundaung Bazar Co., Ltd. v. Ellerman's Arraccan Rice and Trading Co., Ltd. I.L.R. (1934) Rang. 200. This, however, is a case in which we are not concerned with an invasion of one man's rights of easement by another, but with an actual encroachment or trespass by one on the property of another. In the latter class of cases, there is, in our opinion, no scope for the contention that money damages may be given in certain circumstances. The decisions which deal with the question of awarding damages as the more appropriate remedy instead of an injunction do not apply to the present case where the encroachment has been established and there is no other remedy possible except that of delivery of possession. We are therefore of opinion that so far as the wall and the strip of site adjoining it are concerned, the proper decree to be passed in the suit is the decree that was passed by the first Court and that portion of the decree of the first Court must, therefore be restored ; it would thus follow that so far as this item of encroachment is concerned, the decree of Wadsworth, J., is right though not for the reasons given by him.
Normally speaking, even with regard to the encroachment by the kitchen, the same result should follow. However having laid down the general principles, the learned Judge did not interfere with the decrees of the Courts below with regard to the kitchen, in view of the very peculiar circumstances. The learned Judges pointed out:
As regards the kitchen, no doubt the same conclusion ought to follow but it is found that in lieu of 31/3 sq. yards which has been encroached upon, Mr. Jala Durgaprasadarayudu has got nearly 6 sq. yards belonging to the Sowcars in the very same neighbourhood and remains in possession thereof. He cannot, in our opinion, be allowed to have these 31/3 sq. yards while keeping in his possession the 6 sq. yards, which do not belong to him. In these circumstances we do not propose to interfere in appeal with the decree of the Courts below so far as this item is concerned.
This decision of a Bench of this Court is a clear and definite authority for the position that in respect of suits for possession on the basis of actual encroachment or trespass by the defendant on the property of the plaintiff, there is no scope for the contention that money damages may be given in certain circumstances and that the only relief that should be given is that of possession.
28. The question came to be considered again by 'Veeraswami, J., as he then was, in L. S. Ramakrishna Gounder v. The Associated Cement Companies Ltd. S.A. No. 926 of 1951 In that case, the Associated Cement Companies Ltd., secured from the Government a considerable extent of vacant land under a lease for mining purposes. The area consisted of several survey numbers including S. No. 950/1. In S. No. 961/5, situate just south of S. No. 950/1, Ramakrishna Gounder purchased a certain extent and put up buildings on the land at a considerable cost. By so putting up the buildings, he had occupied an extent of about 79 cents of land in S. No. 950/1, which is Government property and in respect of which mining licence in favour of the Associated Cement Companies Ltd., subsisted. Ramakirshna Gounder did not know at the time when he put up the construction that he was trespassing on Government's property. Thereafter the Associated Cement Companies Ltd., filed a suit against Ramakrishna Gounder for recovery of possession of the land encroached upon by him and for a mandatory injunction directing the removal of the superstructure put up by him. Both the trial as well as the first appellate Courts found that the plaintiff had title to the property and they accordingly passed a decree for possession and also granted a mandatory injunction. In such a situation, the second appeal came before this Court. Veeraswami, J., as he then was, accepted the finding of the lower Court that the plaintiff could, if they had cared, have found out in time that the defendant was trying to encroach upon their property and when they permitted the latter to complete his construction, it was evident that they were acquiescing in the act of the defendant. In view of this, the learned judge took the view that it was not a case for directing delivery of possession and inasmuch as there was a prayer in the plaint for the grant of equitable relief by way of mandatory injunction, the learned Judge held that it would be competent for the Court to substitute in the place of the relief sought, a decree for compensation and in that view remanded the suit to the lower Court for passing a decree for compensation.
29. The matter was taken up in appeal and was disposed of by a Bench of this Court in The Associated Cement Companies Ltd. v. L. S. Ramakrishna Gounder : AIR1965Mad318 . The learned Judges who constituted the Bench did not agree with the grounds urged by Veeraswami, J., (as he then was), for refusing to direct delivery of possession. They pointed out:
It is no doubt true that but for the conduct of the appellant, the respondent would not have incurred expenses by putting up the superstructures. But even so if there be no question of estoppel, the appellant would be entitled to recover possession of their property over which according to the concurrent findings of both the Courts below there has been trespass by the respondent.
When the decree for award of compensation was sought to be supported on the basis of the decision in Somasundaram Chetty and Ors. v. Babu alias Ramiah and Ors. : (1912)22MLJ62 already referred to, the learned Judges pointed out:
That case was concerned with a decree for injunction and it was held that injunction need not necessarily be granted against a trespasser under all circumstances; in granting such a discretionary relief the Court could mould the relief in accordance with the justice of the case. The case before us is not one simpliciter for an injunction; it is one for recovery of possession by the owner against the trespasser.
Having made this observation, the learned Judges referred to the decision of Wads-worth, J., and that of the Bench in appeal, discussed earlier, and pointed out:
That would be undoubtedly the rule to be adopted if the matter were simple, i.e., where the party who seeks eviction by removal of the building put up by one upon the land of the former, is not precluded by some other principle of law from obtaining the relief as to possession. But there may be cases where the defendant's. trespass is slight and there was conduct on the part of the plaintiff precluding him from asserting his title.
Having so stated, the learned Judges held that on the facts of the case before them, the plaintiff was prevented by the rule of equitable estoppel from asserting title to the land on which the defendant put up the construction. The learned Judges have stated:
It will be clear from what we have stated above that although a owner of a property will have the undoubted right to recover possession of it from a trespasser albeit that the latter had put up a construction upon it an exception does exist to such a rule where the owner is precluded by any conduct on his part from claiming possession. That is not really denying the owner his right to recover possession from the trespasser; but a rule of estoppel which prevents the owner from claiming the property to be his so far as the other side is concerned. This principle is different from the one recognised in Ladooram Sowcar v. Jaladurga Prasadarayudu (1938) 47 L.W. 255 where there was no question of estoppel. We are, therefore, of the opinion that the conclusion reached by the learned Judge that the appellant would not be entitled to recover possession of seventy-nine cents of land is correct. Once it is held that the appellants are personally estopped from recovering possession of the property from the respondents, it must follow that they would not be entitled to recover any damages for the portion of the land occupied by the respondent. The learned Judge, has, however, directed remand of the case for the purpose for ascertaining compensation payable to the appellant by the respondent. We are unable to see on what ground that direction can be justified. But the respondent has not complained against the order by filing any cross appeal or memorandum of cross-objections. Under the circumstances we leave the direction of the learned Judge as it stands. Before concluding we wish to make it clear that the estoppel by which the appellant is precluded from recovering possession of the property from the respondent is purely a personal one. It will not affect the Government when they ultimately resume possession of the property on the termination of the lease in favour of the appellant; nor will it enure in favour of the appellant(?) after the superstructure is removed.
Thus it will be clear that in this case also the Bench has taken the same view as the right of an owner to obtain possession of the property from a trespasser, notwithstanding the fact that the said trespasser had put up construction on the land and in such a case the fact that a mandatory injunction has been asked for as incidental to the remedy by way of possession will not enable the Court to refuse to direct delivery of possession and to grant damages only. However, an owner of the property may loose his right to claim the property as his own by the principle of equitable estoppel, in which event, there is no scope for exercising any discretion because the plaintiff is prevented from putting forward his title itself.
30. The entire question was considered by the High Court of Andhra Pradesh in N. C. Subbayya v. Pattan Abdulla Khan (1956) 69 L.W. 52. In that case, the learned Judge (Viswanatha Sastri, J.) posed the following question for his consideration:
Has the Court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the defendant on the plaintiff's land
After elaborately considering the cases in England as well as in this country, the learned Judge pointed out:
To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the plaintiff's property and an appropriation of it for the defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.
To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the defendant to remove the encroachment and restore possession of the vacant site to the plaintiff. Neither serious inconvenience to the defendant--trespasser nor the absence of serious injury to the plaintiff is a ground for depriving the latter of his legal right to the property....The grant of a mandatory injunction is no doubt a discretionary relief but the discretion is one that should be exercised judicially and according to well settled principles. If it is wrongly exercised, it is subject to correction on appeal. Where the plaintiff has been guilty of laches amounting, to an acquiescence in the act complained of or where the plaintiff has knowingly permitted the defendant to make the construction and incur heavy expenditure without protest or objection, the Court may not, in the exercise of its discretion, grant a mandatory injunction, but give damages instead ....
Courts are more liberal in granting mandatory injunctions where the unlawful acts are calculated to deprive the plaintiff of his right to the property itself than where there is only an interference with his convenient enjoyment of his property with access of sufficient light and air. There is a well recognised distinction between cases of trespass and cases of interference with ancient lights and covenants as observed by Lord Selborne, L.C., in Goodson v. Richardson (1874) L.R. 9 Ch. Ap. 22.
In this case even though the learned Judge has granted a decree for possession, giving liberty to the defendant to remove the building, he assumes that discretion is available to the Court even in such cases, which assumption, with great respect to the learned Judge, does not appear to be correct for the reasons already given by me.
31. Thus, both on principle and an authority, it is clear that when the owner of a land files a suit for recovery of possession of his land from a trespasser who had built upon the land, with incidental prayer for a mandatory injunction directing the defendant to demolish the building put up by him, the plaintiff (owner) is entitled to succeed, once he has established his title and 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. 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.
32. Mr. P. C. Psrthasarathi lyengar, learned Counsel for the respondent in S.A. No. 1113 of 1966, cited a few decisions of this Court in support of the decision of the learned Subordinate Judge. The first decision relied on by him is that of Srinivasa Ayyangar, J., in S. S. V. Krishnan Pillai and Ors. v. Kilasathammal : AIR1928Mad810 . That was a case where the plaintiff and the defendants had a right of way over common lane and the defendant had put up ' a sort of a platform as a sort of a roof or covering for the lane and built a thatched shed thereon'. The learned Judge held that the plaintiff was not entitled to any mandatory injunction, but was entitled only to damages. I am of the opinion that that decision does not help the respondent ; nor does it run counter to the principles I had enunciated and referred to above. This case did not concern a suit for possession based on trespass and certainly it could not have been a case for possession because the lane was admittedly the common property of both the plaintiff and the defendant. The second factor to be noticed is that the learned Judge pointed out that there had been no interference whatever with the user of the lane by the plaintiff by the putting up of this structure. The learned Judge recorded:
I put the question to the learned vakil for the respondent how his enjoyment of this common lane has been interfered with by the defendant putting up that shed or terrace over the lane. He has not been able to answer it. He merely, in answer, referred to his legal right.
Hence, that case where damages have been granted instead of a mandatory injunction cannot in any way help the respondent in the present case.
33. The next case relied on by the learned Counsel is St. Anthony's Church V. Krishnaveni Ammal : AIR1955Mad542 . That case actually concerned a suit for possession. But the finding of the learned Judge was that the plaintiff had not established the fact of possession of the suit property within 12 years from the date of the suit. In this view the suit of the plaintiff was dismissed. However, the learned Judge (Somasundaram, J.), made certain observations regarding grant of damages in lieu of mandatory injunction. Without discussion of the general principles and authority, the learned Judge expressed his opinion as to the damages being the proper relief in that case. Further the observations of the learned Judge were clearly obiter because of the conclusion that the suit was liable to be dismissed. Hence this decision also is not of any assistance to the respondent in this case.
34. The next decision relied on by the learned Counsel is Tilokchand Nathmal and Anr. v. Dhundiraj Madhavarao and Ors. A.I.R. 1957 Nag. 2. From the report itself, it is not clear as to what was the relief claimed by the plaintiff in the suit. The paragraph on which reliance has been placed by the learned Counsel is:
The only point in this finding which has gone against the defendant appellants is that they have been asked to leave a space of three inches from the plaintiffs' existing upper storey wall as that space belongs to the plaintiffs. That the space belongs to the plaintiffs is a finding of fact based on evidence and we cannot interfere with it.
The defendants have thus undoubtedly encroached on that much space but if they pull down the present wall and built another wall leaving a space of three inches that space would not be of any use to the plaintiffs. On the other hand the plaintiffs' wall would get support from the defendants' newly built wall.
In these peculiar circumstances we are of the opinion that we should not give the discretionary relief of mandatory injunction and we quash the order of the lower Court which directs leaving of a space of three inches from the plaintiffs' southern wall of the upper storey. We, however, grant them compensation in money therefor. The defendants shall pay Rs. 50 to the plaintiffs therefor.
From this passage, it is clear that the disputed property was the space between two walls and the suit itself could not have been one for recovery of possession, based on title. Hence, I do not think that this decision is of any assistance to the respondent.
35. Mr. Parthasarathi Iyengar then referred to the decision of Pandrang Row, J., in T.R. Bhushanam v. C. Umapathi Mudaliar and Anr. : AIR1935Mad870 . That was a case clearly dealing with easement, namely, right to light and air. With reference to such a case, the learned Judge held that there was a discretion whether to grant mandatory injunction or only to award damages. It must be remembered that the learned Judge himself was a party to the decision in Ladooram Sowcar and Anr. v. Nidamarti Jaladurka Prasadarayudu (1938) 47 LW. 255 referred to already, making a distinction between cases involving invasion of one man's right of easement by another and cases of actual encroachment or trespass by one on the property of another.
36. The last decision relied on by Mr. Parthasarathi Iyengar is Lalji Dayal v. Viswanath Prabhuram Vaidya and Ors. A.I.R. 1929 Bom 137 already referred to, by Wadsworth, J., in his decision already discussed. That was a case of the defendant's gallery overhanging the plaintiff's open space. With reference to the facts and circumstances of that case, the learned Judges held that damages would be the proper remedy and not mandatory injunction. That again was not a suit for recovery of possession of the plaintiffs' property from the defendant on the basis of trespass but one for a bare injunction.
37. Thus, none of the decisions cited by Mr. P. C. Parthasarathi Iyengar runs counter to the authorities I have referred to and the principles I have enunciated and they do not help to sustain the order of the lower appellate Court in this case awarding damages instead of compensation.
38. In this view, namely, that when the suit itself is for recovery of possession, the question of acquiescence or delay or laches on the part of the plaintiff does not and cannot arise, as has been wrongly assumed by the learned District Judge in the first appeal which has given rise to S.A. No. 1128 of 1966. In a very early case Rama Rao v. Raja Rao (1864) 2 Mad H.C. Rep. 114, referred to in Premji Jivan Bhate v. Haji Cassum Juma Ahmed I.L.R.(1896) 20 Bom 28 this Court held that the equitable doctrine of laches and acquiescence does not apply to suits for which a period of limitation is provided by the Limitation Act. Therefore, once the suit is within time, the doctrine of laches or acquiescence has no place to defeat the right of the plaintiff to obtain relief in the suit.
39. As a matter of fact, even granting that laches or acquiescence on the part of the plaintiff can be taken into account in the exercise of the discretion for the grant of the equitable relief of injunction any and every delay will not constitute a ground for denying the relief of injunction to the plaintiff. The meaning of ' acquiescence' is thus stated, with reference to the provisions of Section 56 (h) of the Specific Relief Act, 1877, in Collett's Law of Specific Relief (page 429 of the 5th Edition):
If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and makes, no objection while the act is in progress he cannot afterwards complain. That is the proper sense of the word acquiescence. (Halsbury's Laws of England, Injunction, Vol. 17, page 210, 220). Hence, there should be shown to have been knowledge as well as of the acts committed as of the rights involved ; or, as has been said, the acquiescence must be such as, in the view, of the Court, would make it a fraud afterwards to insist on the strick legal right.... The doctrine will apply, that if a man, either by words or conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his, words or to the fair inference to be drawn from his conduct.... Generally speaking, if a party has an interest to prevent an act being done and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice, then he would have had if it had been by his previous licence. (Per Lord Campbell, L.C., in Cairncross v. Lorimer 7 Jur.N.S. 149 : (1860) 3 Macq.H.L. 827, Ds. Busschey v. Alt (1877) 8 Ch.D 314 : (1878) 47 L.J. Ch. 381.
After extracting this passages, in Murarilal v. Balkisan and Anr. A.I.R 1926 Nag. 416, it was pointed out:
The word 'acquiescence' is used in two senses ; sometimes it is used to denote conduct which is evidence of an intention by the party conducting himself to abandon an equitable right ; sometimes to denote conduct from which another party would be justified in inferring such an intention, i.e., it is sometimes employed as equivalent to conduct which amounts to a release and sometimes as equivalent to conduct which creates an estoppel or constitutes a promise, for which the acts of the defendant supply a consideration. Acquiescence, properly speakings relates to inaction during the performance of an act; laches relates to the delay after the act is done.... So to fix acquiescence upon a party it should unequivocally appear that he knew the facts upon which the supposed acquiescence is founded, and to which it refers ....Laches to bar the plaintiff's right must amount to waiver, abandonment, or acquiescence and to raise a presumption of any of these, the evidence of conduct must be plain and unambiguous ....Delay may imply and be evidence of release or abandonment of right.
In O.K. Mohideen Bewa v. Rigaud Perfume Manufacturers I.L.R.(1932) Rang. 133, it was held:
Acquiescence is only a form of estoppel, and it is of the essence of acquiescence that the party acquiescing should be aware of, and by words or conduct should represent that he assents to, what is a violation of his rights, and that the person to whom such representation is made should be ignorant of the other party's rights, and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party.
This view was reaffirmed by the Rangoon High Court in Poozundaung Bazaar Co. Ltd. v. Ellerman's Arracan Rice and Trading Company Limited I.L.R.(1934) Rang. 200.
40. Thus it will be seen that in the present case, unless acquiescence amounting to equitable estoppel is established, the plaintiff cannot be denied the relief of possession, which he has asked for. What will amount to equitable estoppel has been laid down by several decisions. In Lola Behi Ram and Anr. v. Kundan Loll and Ors. (1899) 26 I.A. 58, a question arose whether a landlord would be entitled to a building erected by a tenant after his term of lease had expired. The Privy Council recognised that while the landlord will not be precluded by any rule of equitable estoppel from recovering possession of the land after the expiry of the tenancy, even when the tenant had put up a permanent structure on the land, the equitable estoppel could well, in certain circumstances, arise preventing him from doing so. The Privy Council pointed out:
In order to raise the equitable estoppel which was enforced against the appellants by both the Appellate Courts below, it was incumbent upon the respondents to show that the conduct of the owner, whether consisting in abstinence from interferring or in active-intervention, was sufficient to justify the legal inference that they had by plain implication contracted that the right of tenancy under which the lessees originally obtained possession of the land should be changed into a perpetual right of occupation.
41. The Privy Council again referred to this doctrine in The Canadian Pacific Railway Company v. The King (1931) A.C. 414, where Lord Russell observed:
It was further contended that the Crown was precluded from revoking the licence by reason of some equitable doctrine, which it was alleged was applicable to the case. The doctrine was not very clearly defined but reference was made to Bamsden v. Dyson L.R. (1895) 1 H.L. 129. In the course of the judgments in that case instances are given in which equity will intervene in favour of a litigent as against the legal owner of land. One such (see per Lord Cramworth at pages 140-1) is the case where A builds on land which he thinks is his, but is really B's and B. knowing of A's mistake, encourages A to build either directly or by obstaining from asserting his legal right. In such a case equity will intervene for the protection of A. This, their Lordships understand to have been the equitable doctrine which was invoked by the appellant. It is a doctine which is sometimes alluded to under the name of ' equitable estoppel'. Whether there can be any estoppel which is equitable as distinct from legal and whether ' equitable estoppel' is an accurate phrase, their Lordships do not pause to enquire. The foundation upon which reposes the right of equity to intervene is either contract or the existence of some fact which the legal owner is estopped from denying. Thus in the case put, B's conduct is such that from it may be inferred a contract by B not to disturb A in the possession of the land, or it may amount to a statement by B that the land is A's upon the faith of which A has acted and built.
42. However, none of these principles will apply to the facts of the present cases. As far as S. A. No. 1113 of 1966 to concerned, the learned Subordinate Judge has not declined to grant the relief prayed for by the appellant on the ground that he was guilty of acquiescence. He proceeded on the basis that the damage caused to the appellant was small, because the land was rocky and not cultivable, but the removal of the encroachment would cause hardship to the respondent. Even in S. A. No. 1128 of 1966, the relief was denied to the appellant on the sole ground that the Panchayat put up the latrine in 1957 and that the appellant did not immediately file a suit, and obtain an injunction restraining the panchayat from proceeding with the construction, even though P. W. 2 had informed him of the construction and there was no scope for invoking the doctrine of equitable estoppel, and the Panchayat completely denied the title of the appellant to the land, setting up title either in the Government or in third party. For the reasons already indicated by me, the failure on the part of the appellant to file a suit immediately for a direction to the Panchayat not to proceed with the construction cannot be a ground for denying the relief of possession to the appellant. As a matter of fact, even the finding that the appellant had knowledge of the construction in 1957 itself and he did not institute the suit immediately cannot be sustained with reference to the facts of the case. According to the appellant, the suit property was owned by his father and he became entitled to the same only after his father's death on 7th January, 1961. There is no evidence to show that the appellant's father was aware of the construction in 1957 and he did not object to the construction or take any other steps against the Panchayat till he died. The appellant himself, not having any right or title to the suit property, could not have taken any steps till 7th January, 1961, even if he was aware of the construction. After the death of his father, when the appellant became the owner of the property, he issued a notice to the Panchayat in June, 1,962 and instituted the suit in December, 1962. Under such circumstances, the charge of delay of five years on the part of the appellant was unwarranted.
43. For all these reasons, I am of the view that there is absolutely no justification whatsoever for denying the two appellants in the respective second appeals to relief of possession which they have prayed for and to which they are entitled.
44. Under these circumstances, the Second Appeal No. 1113 of 1966 is allowed and the judgment and decree of the learned Subordinate Judge, Salem, dated 15th December, 1965, in A. S. No. 59 of 1965, are set aside. Instead, there will be a decree declaring the appellant's title to the suit property Abcdefghi in the plaint plan (attached to the decree of the trial Court) an directing that the appellant do recover possession of the said land encroached upon by the respondent, with liberty to the respondent to remove the revetment on the said land within three months from this date and restore the property of the appellant to the condition in which it was, when he encroached upon the same. In default, the appellant will be at liberty to remove the revetment put up by the respondent on his (appellant's) land through Court and recover the expenses of such removal from the respondent. There will be no mandatory injunction to the respondent since such injunction to remove the revetment is only for the benefit of the respondent and instead he is given the liberty to remove the same within three months. The appellant is also entitled to permanent injunction restraining the respondent from in any manner interferring with the appellant's possession and enjoyment of the suit land. The appellant will have his costs throughout. No leave.
45. S.A. No. 1128 of 1966 is also allowed and the decree and judgment of the learned District Judge, Tiruchirapalli, as well as those of the learned District Munsif, Turaiyur, are set aside. Instead, there will be a decree declaring the appellant's title to the suit property marked as pqrs in the plaint plan (attached to the decree of the trial Court) and directing that the appellant do recover possession of the said property encroached upon by the respondent, with liberty to the respondent to remove the latrine on the said property within three months from this date and to restore the said property of the appellant to the condition in which it was, when it encroached upon the same. In default, the appellant will be at liberty to remove the latrine put by the respondent on his (appellant's) property through Court and recover the expenses of such removal from the respondent. There will be no mandatory injunction to the respondent in this case also and instead the respondent is given the liberty to remove the latrine within three months. In this appeal also, the appellant will have his costs through out.
46. No leave.