9911796707
TMI Blog1970 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ₹ 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 prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 (1864-65) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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. (1906) I.L.R. 33 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) 22 M.L.J. 62. That was a case where the plaintiff sued for a mandatory injunction compelling the defendant to demolish 4 inches of his wall to which e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 neighbour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 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 Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty....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 liber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion 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 A.I.R. 1955 Mad. 542. 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
