A. P. Misra, J. - (1.) THE present Second Appeal arises out of a suit for possession of the land and for demolition of unauthorised construction standing thereon. THE suit was instituted by one Munni Lal alias Mulla. He died during the pendency of the suit and his sons and legal representatives were brought on the record.
(2.) THE brief facts of the case, as alleged by the plaintiff, are that Smt. Belsi was the owner of house no. 38 in Mohalla Mahanpura in the town of Ghazipur. THE house stood on the land in suit shown by letters ' FGKLF ' in the plaint map. Smt. Belsi then sold the house to Munni Lal on 7th March, 1946 for a consideration of Rs. 69-15 Annas 9 Paise and thereafter Munni Lal entered into possession of the same. It is alleged that during absence of Munni Lal the appellant Pabbar Ram trespassed on the land in suit and constructed a room ' FGIN ' and walls ' LN ' and ' JK ' as shown in the plaint map. THE defendant-appellant Pabbar Ram denied the plaint allegations. According to him, the disputed constructions have been made on his own foundation in the land of courts of ward after taking its permission. It is also not in dispute that Smt. Belsi was the maternal grandmother of the appellant. THE defendant-appellant denied the claim made by the plaintiff in suit. Learned Munsif decreed the suit and held that the house of Smt. Belsi existed on the land in suit and was sold to Munni Lal on 7th March, 1,46. Thereafter Munni Lal became owner of the said house and entered into its possession. It is also found by the trial court that the appellant did not take the land in suit from the courts of ward and had not made the disputed constructions on old foundation. It is also held that the suit was not barred by time nor by estoppel. The trial court directed the appellant to remove the unauthorised construction and hand over possession of the land in suit to the respondents. In appeal, the lower appellate court further held that since it was a common case of the parties that Smt. Belsi was owner of house no. 38, it could not be doubted that she was not the owner of the same. The appellate court actually relied on Mulla's Transfer of Property Act, IVth Edition at page 288 to hold that existence of unregistered sale deed (Ex. 9) will not defeat the title of Munni Lal which has been proved from the evidence on record. According to quotation from Mulla's " in the case of tangible immovable property worth less than Rs. 100/- if the transfer is not made by delivery, there may be a registered sale deed and unregistered deed would be invalid and would not operate as constructive delivery. But if there is delivery, it is as already stated not rendered nugatory by the existence of an unregistered sale deed. " The appellate court further did not accept the appellant's contention on the basis of entry in the Municipal Assessment Register. It cannot be doubted that the right of the appellant will only step in, if at all, after the death of Smt. Belsi. In the present case, if the property itself was transferred by Smt. Belsi prior to her death, there could be no question of any inheritance of the property and the entry, therefore, could not be relied on. In this case I find that both the courts below recorded a finding that the sale was made by Smt. Belsi of the disputed house to the plaintiff. Money was paid and possession was delivered which is a finding of fact. It further recorded a finding that the house of Smt. Belsi existed on the land in suit and the appellant had no right to erect any building on the said land on the basis of the alleged permission of the courts of ward or otherwise. It is in these lights the suit for demolition and possession was decreed by both the courts below. The appellant does not raise any such ground which calls for any interference in these findings. However, in the end, the learned counsel for the appellant Sri S. K. Verma urged that instead of ordering for demolition the court could have decreed for compensation in lieu of the damages. For this he made reliance on the following four cases vis-a-vis Prabhoo v. Doodhnath, AIR 1978 Alld. 178, Ram Shanker v. Mahatma Gandhi Higher Secondary School Jonihan, AIR 1979 Alld. 184, U. P. State Electricity Board, Lucknow v. R. Wheeler, AIR 1983 Alld. 8 and Chandra Bhan Singh v. Sheo Shankar (deceased), AIR 1984 Alld. 92. The case of Prabhoo v. Doodhnath (supra) is a case of a co-owner seeking mandatory injunction for demolition. The principle laid down in that case could not be applicable to the facts of the present case. In this case of Ram Shanker v. Mahatma Gandhi Higher Secondary School (supra) the decision was based on entirely different facts. In that case it was held " even though there was some partial encroachment on the land of the plaintiff and he was making no use of it and the defendant, on the other hand, was an educational institution and that the plaintiff, therefore, would suffer no irreparable loss even if he had to pass on the land ". It was on these facts the court made an order that it was a fit case where instead of ordering demolition of the construction, the plaintiff might be permitted to claim damages under section 43 (2) of the Specific Relief Act. As I have said this case has no bearing to the facts in the present case. Next reliance was placed in the case of U. P. State Electricity Board, Lucknow v. R. Wheeler (supra) where the removal sought by the plaintiff against the U. P. State Electricity Board was of removal of some electric poles fixed by it on the agricultural land belonging to the plaintiff. It was held in that case that it was possible to compensate the plaintiff on account of use of the land by the State Electricity Board by fixing the poles and since the courts below did not take into consideration, the case was remanded for consideration whether compensation could be awarded in lieu of the demolition of the poles or not. This again is a case dependent entirely on different facts from the present case. In fact, granting mandatory injunction is always a discretionary remedy and facts of each case greatly weighs in coming to the conclusion whether compensation in lieu of demolition could be ordered or not. Lastly reliance was placed by the learned counsel for the appellant in the case of Chandra Bhan Singh v. Sheo Shanker (deceased) (supra). In this case according to Advocate Commissioner only a small triangular portion lay within the plaintiff's plot which was sought to be demolished, the rest of the construction was not founded to be on the plaintiff's land. It was further recorded in that case that the bonafides of the defendants were established. There was almost no encroachment according to the first Commissioner's report and the encroachment found even on the basis of the last report of the Commissioner, was very minor. In fact, in that case it was further recorded that even the fact of encroachment was very doubtful. If the court had acceded to the defendant-appellants request for issue of another commission even that encroachment might have proved to be wrong. In the light of these facts the court made an offer to the plaintiff to amend the plaint to claim compensation in lieu of the demolition. It is significant to point out here that in the last referred decision the Hon'ble Judge himself made a distinction while distinguishing the case of Bodi Reddy v. Appu Coundan, 1970 (2) Mad.LJ 577. Since Madras case was a case of not pure demolition but also possession, therefore, this principle could not apply. The case of Chandrabhan Singh v. Sheo Shankar (supra) was a case for simple demolition and not possession. Similarly in the present case it is a case not only for demolition but also for possession, therefore, both on facts and also for the aforesaid reasons the principle laid down in that case could not be applicable to the present case.
(3.) IT cannot be said that mandatory injunction should only be granted when pecuniary compensation would not afford adequate relief. Even if it could be said that it is a consideration for the grant of injunction, the discretion has to be exercised on the basis of facts of each case. Where there is invasion for very minor right or encroachment which are insignificant or the plaintiff does not suffer on account of the encroachment or of other facts, it would make grant of pecuniary compensation in lieu of demolition as an equitable relief, the court has such discretion to grant as a relief. This principle could not be doubted. According to the facts of the present case where the allegation in the plaint was that when the plaintiff went to Hoogli for treatment he received a letter of Rukka on 1st January, 1965 and a telegram on 9th January, 1965 intimating that the disputed constructions were being made by the defendant. Plaintiff's son came down from Hoogli to Ghazipur immediately and he tried to restrain the defendant from making the said construction but the defendant went on committing the said mischief. In fact, it was when the said telegram was given even Ramdas one of the respondents lodged a first information report on 8th January, 1965 but the defendant did not pay any heed to the same. This finally led to the filing of the present suit for possession and demolition. On these facts it could not be said that this is a case in which compensation in lieu of the damages should be granted. Admittedly it is not the appellant's case either in the pleading or before the trial court or even at the appellate court where he preferred an appeal that he had taken any ground that instead of demolition, compensation in lieu of damages should only be granted. I am of opinion that it is not a fit case on the facts of this case that such relief could be granted to the appellant. In view of this, the contention and the last prayer of the defendant-appellant is not sustainable.;