LALJI DAYAL Vs. VISHVANATH PRABHURAM VAIDYA

JUDGEMENT

(1.) The finding of both Courts is that the defendant has encroached upon the plaintiffs land by putting up the gallery on the second floor of his house. The trial Judge was of opinion that this was not a matter for compensation, but was not willing at the same time to grant a mandatory injunction unless the plaintiffs built on their land within twelve years. The trial Court gave a declaration that the plaintiffs would be entitled to have a certain portion of the defendant's gallery and roof removed if and when they erected a building over their plaint land, provided that they built within twelve years from the date of the decree, For this form of the decree, there is, so far as I am aware, no precedent. The appeal Court substituted for this conditional order an order granting the relief by way of mandatory injunction claimed by the plaintiffs.

(2.) Mr. Coyajee, on behalf of the appellant, has urged that this is a case for compensation and not for a mandatory injunction. The matter of granting a mandatory injunction is a matter which is in the discretion of the Court. That discretion, however, has to be exercised with due regard to certain principles which have been laid down, and accepted as authoritative in matters relating to the granting of a mandatory injunction in such cases. In Rewa V/s. Vrijvalabh (1903) 6 Bom. L.R. 41. Jenkins C.J. enunciated that principle as follows (p. 42):- Now it is well established as a rule by which Courts are guided in reference to the granting of mandatory injunction that though it is within the power of a Court to grant a mandatory injunction even if the building complained of has been completed, still the Court is reluctant to make an order for the removal of a building already finished at some considerable cost and trouble unless it be clear that material damage would otherwise ensue. It is by reference to this rule that the point before ns should be decided, and we are under the impression that these considerations were not closely present in the minds of the lower Courts when they dealt with this part of the case,... The facts of the case were similar to the case with which we are here dealing. The defendant had encroached upon apart of the plaintiffs strip of land by constructing his otla and thereafter his Mandvi (building) upon it, and the lower Courts had ordered the removal of the portions of the building which had encroached upon the plaintiffs land. The Court, after formulating certain issues, remanded the case to the lower Court to find on those issues. One of the issues so sent down was : What is the amount of damage, if any, suffered by the plaintiffs by reason of the erection of the superstructure?

(3.) In Nasarbhad Ahmedbhai V/s. Munahi Badrudin (1891) I.L.R. 16 Bom. 533. the plaintiff's eaves had projected over the defendant's roof which had ranted on a wall common between the parties for more than thirty years, and the- plaintiff had thus acquired a right to have the water carried from his roof on to the defendants roof, and the defendants had raised the common wall and removed the plaintiff's eaves. Sargent C.J., in remanding the case to the lower Court, remarked (p. 535) : ... the defendants having raised the common wall and removed the plaint- iffs eaves, the plaintiff is entitled to relief, either by damages, or mandatory injunction. To determine which, it will be necessary, in the state of the authorities, for the Judge to find on the following issues ; 1. Has the plaintiff acquiesced in the defendants building, or warned the defendants to desist from such building; and all what stage of the building operations was such warning given? 2. How soon, after the plaintiff's eaves were removed, did the plaintiff take legal proceedings against the defendants? 3. Can the injury caused to the plaintiff by the removal of his eaves be adequately compensated by damages, and, if so, what damages should be awarded?