Lawrence H. Jenkins, C.J.
1. The litigants in this suit are two neighbouring house-owners, the plaintiff being the owner of No. 17, Ezra Street, and the defendant of No. 16 Ezra Street, in the town of Calcutta, and the point in dispute is whether a wall which in December 1908 or, February 1909 was erected by the defendant in the immediate proximity of the plaintiff's premises was or was not wrongful encroachment entitling the plaintiff to relief in this Court.
2. The plaintiff alleges that the wall was built on his land, and that it therefore constituted a trespass. The defendant on the other hand denies this, and he goes on to plead that even if it was built on the plaintiff's land, still it occupied the site of an old wall of his on that land which had stoops there for more than thirty years; and so he says, any claim by way of trespass now fails.
3. The case came in the first instance before Mr. Justice Fletcher who decided in the defendant's favour, his view being that the plaintiff had failed to establish that the site of the wall as it now stands was the property of the plaintiff. On the second point he expressed no definite opinion.
4. We first then have to see how far the plaintiff has succeeded in establishing his title to this piece of land, apart from any possible subsequent encroachment. The southern wall of No. 17, Ezra Street, faces in part on a public lane and in part on a portion of the premises No. 16, Ezra Street. At the base of this wall there now exists, and. there has existed ever since the wall was constructed, a spreading course or footings of the width of 13 in. on the south side of the wall of No. 17. It is on these footings that the defendant's wall stands. Now, are these footings within the limits of the plaintiff's land? It is not suggested that the title-deeds in this case contain anything that is opposed to that view. The description of the parcels in the deed brought to our notice certainly does not negative the idea that these footings were built within the limits of the plaintiff's land. On the other hand, we have it that these footings have been there for a great length of time, and I think it is a fair presumption in the circumstances of the case to hold that they were not placed there wrongfully. I see no ground for presuming a trespass on the part of the plaintiff's predecessor when he constructed that wall. The inference that I would rather draw would be that when these footings were placed in the position that they now occupy, they were placed within the limits of the land belonging to the plaintiff's predecessor and now belonging to the plaintiff. This view I think receives some corroboration from the fact that the lateral extension of the cornices of this house towards the south corresponds precisely with the southern extension of these footings.
5. Before us, indeed, no serious attempt has been made to support this finding of the learned Judge, and I do not hesitate to come to the conclusion that the plaintiff has established that these footings are within the limit of his property. While the defendant has not sought to sustain his case on the ground which found favour with the learned Judge he has urged before us and has made it his principal point that the new wall of which complaint is now made in fact occupies the site of an old wall that stood there for more than thirty years. If that be so, obviously he would have a very good answer to the plaintiff's claim.
6. Now, how does the case stand as to that? The onus clearly rests on the defendant. Has he discharged that onus
7. After discussing the evidence his Lordship said:-
8. These circumstances appear to me not merely to throw considerable doubt on the evidence of the defendant but convince me that the old wall of the porch was, as the plaintiff maintains, not flush with the wall of No. 17. Therefore the defendant's plea that his new wall occupies the site of the old wall fails. The just conclusion from this is that there has been an unlawful encroachment. Now, if that be so, there is a wrong in respect of which the plaintiff is entitled to a remedy. In the prayer of his claim he seeks a declaration, a mandatory injunction and damages. In the view, I take it is unnecessary to enter into the question of damages, but I think the plaintiff is entitled to a mandatory injunction, and in the circumstances it appears to me that that is his proper remedy. To begin with I do not think that there has been any delay or acquiescence on the plaintiff's part. There is a conflict of evidence on this point as between Abdul Ali and Ram Charn Law, and of the two versions I prefer that of Abdul Ali. It is true that the wall has been completed or was completed before the suit was brought, still we are here concerned with trespass on the land of the plaintiff, a trespass not carried out as the result of long and continuous work but of work completed quietly and promptly: 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 it's present site. That being so, I think the proper remedy is by way of mandatory injunction. The case appears to me to come clearly within the law as established in Chapter X of the Specific Relief Act, and I think that in accordance with what is provided in Section 55 it will be right for us to compel the defendant to pull down so much of the wall as is an encroachment on the land of the plaintiff, that is to say so much of the wall as stands over the 13 inches to which the plaintiff has established his title in this suit. As I have said, there is no case for damages, but the plaintiff will get his costs both of the suit and the appeal from the defendant.
9. A month's time is allowed to pull down the wall, with liberty to apply if necessary.
10. I agree.