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 interfering 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.
Thus, the question of law that arises in both the second appeals is the same and is disposed of by this common judgment.;