9911796707
TMI Blog1970 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ₹ 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 (1864-65) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving 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 (1911) I.L.R. 38 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ₹ 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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) 12 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money therefor. The defendants shall pay ₹ 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. A.I.R. 1935 Mad. 870. 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. Viswa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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