R.J.SHAH - (1.).His Lordship after discussing the facts confirmed the decision of regarding encroachment of the trial court with respect to two parcels of land and reversed the decision regarding the third parcel of land. Regarding the principles and quantum of damages concerning encroachments His Lordship observed:
(2.). This leads me to the question regarding quantum of damages. Encroachment on property by itself is seldom unintended. At its root there is a deep seated feeling of law-lessness. Persons who indulge in encroachments have less respect for law and Courts and are confident that they can handle all situations. In rare cases encroachments can also be unintended and under a mistake. In the present case so far as installation of a boiler and chimney are concerned since no actual measurements were taken at the time of installation and since no boundary marks were put before that time it could have been that the same might have been installed at the place where they have been installed under a mistaken belief that the land on which the same were installed formed part of the leased land. Be that as it may. Defendants have never come with such a case. Even when the plaintiff challenged it as an encroachment defendants took no steps to ascertain whether it was so or not. Defendants have proceeded on the assumption that it was not and spared no efforts to establish that it was not. In their efforts in this connection they have gone to the extent of suggesting and/or alleging that the plaintiff limited company had committed forgery in several respects. Defendants persisted to the last and over a period of eight years to create a make-belief that they have not committed any encroachment. Such has been the conduct of the defendants and never have they claimed that any encroachments have been committed by them under any mistaken belief. Map exhibit 123 clearly shows the actual portion occupied by the boiler and the chimney which is not even 1/3rd of the area covered by block A which admeasures 53 sq. yds.
(3.). So far as the measure of damages in such cases are concerned it hardly needs to be emphasised that the measure can never be as to what would have been the amount if similar parcels of land were let out under an agreement between the parties. Encroachment on land essentially means taking of actual possession of land without the consent of the owner and to his exclusion. If premium is not to be put on encroachment and if encroachments are to be discouraged than damages will have to be assessed taking into consideration the aforesaid aspects. Besides trespass on land continues till illegal possession is retained. In the present case encroachments have continued for years. If the parcels of land were not encroached upon and if the owner had the possession thereof then it would have benefited by the increase in the market price if any if it were to sell or let out the same. In the present case plaintiff has been deprived of such a benefit for a long period. This aspect of the matter should also weigh while assessing damages in a case such as the present. While assessing damages the trial Court has not proceeded on the aforesaid lines and so its findings in this connection will need to be disturbed. Appeal dismissed: Cross-appeal partly allowed.