- (1.) IN this second appeal the following substantial question of law is involved:- "whether on the facts and in the circumstances of the case, the learned Civil Judge, Sirohi was, by his order dated September 10, 1978, not right in maintaining the decree of demolition of the construction in question, passed by the Munsif Bali on September 29, 1977 ?''
(2.) BEFORE deciding the question, it is pertinent to mention the facts of the case. Plaintiffs Bhabhutmal and Sagarmal filed a suit for possession and injunction alleging that a residential house was situated in village Khudala Tehsil Bali details of which are given in para No. 2 of the plaint. A patta of the house was granted by Thikana to the plaintiffs. The defendants had their house adjacent to the plaintiffs' house on the western side. They started construction about two months before and insisted that they would open a new door towards the house and open land of the plaintiffs. This way the plaintiffs were threatening. Plaintiffs issued a notice on 28. 5. 71 that the defendant may not open any apertures towards the land of the plaintiffs and may not trespass over the land of the plaintiffs. But the defendants even then committed trespass on a piece of land shown as 'a', 'm', 'r' (shown in the site plain) of the measurement of 6 sq. yards and raised a wall 'a' to 'r' and opened aperture 'l'. The defendants had no constructed wall at this site. They had no right to raise any construction on this portion of land. It was prayed that the suit be decreed. The case of the defendants before the trial Court was that the constructed area of the house of the plaintiffs was far away from the wall constructed by the defendants. The land was open and did not belong to the plaintiffs. The defendants were not bound by the patta of the plaintiffs. The plaintiffs never objected to the construction of the wall when it was being raised and that the defendants had not trespassed over 6 sq. yards of land belonging to the plaintiffs. Instead they have constructed their wall on the land which was a part of their own patta. They had a right to open aperture marked 'l' within their own rights. The trial Court framed following issues :- ...[VERNACULAR TEXT OMITTED]... After recording evidence of both the parties the trial court decreed the suit and held that it were the plaintiffs who were the owners of 6 sq. yards of land and were entitled for its possession and ordered the defendants to demolish their construction over the area of 6 sq. yards of land. This decree was affirmed by the learned Civil Judge, Sirohi by his judgment dated 10. 9. 1979. Therefore, this second appeal was filed. Learned counsel for the appellants first argued that the patta granted to the plaintiffs required registration and since it was not registered it was inadmissi- ble in evidence. Consequently the plaintiffs had no right. The patta Ex. 2 was gran- ted under the Marwar Patta Ordinance, 1921 and is dated 5. 6. 1942 and is on a stamp of Rs. 2/- Rule 7 (1) of the Marwar Patta Ordinance, 1921 provides that the persons who were in occupation of any land on January 1st, 1922, are entitled to get patta for the land in their occupation on payment of the prescribed fees. From Ex. 2 it is clear that the prescribed fee was paid and it did not require any registration as per provision of Rule 8 of the Marwar Patta Ordinance, 1921. The argument is not acceptable. There is a concurrent finding that the house and open land belonged to the plaintiffs.
(3.) LEARNED counsel for the appellants submitted that the site plan Ex. 1 shows that the houses of both the parties are adjacent to each other but the cons- tructed area of the house of the plaintiff was quite far of from the wall raised and that there was an open land adjacent to it over which the defendants had a right of access and ingress towards the land. He submitted that the mandatory injunction should not have been granted when the pecuniary compensation could be adequate. For this proposition he cited Nidamarti Jaladurga Prasadarayudu vs. Landoo- ram Sowcar and another (1), and Lalji Dayal vs. Vishvanath Prabhuram Vaiday and others (2)In Lalji Dayal's case (supra) the facts were that a gallery was erected overhanging other's open land. Notice after completion of gallery was given and roof was put up after notice. There was no dishonest motive or intentional trespass and in such a case mandatory injunction was refused as money compensation was found sufficient. This order was passed in second appeal decided on 28. 9. 1928 by Hon'ble Mirza and Baker, JJ. as they then were. In Nidamarti Jaladurga Prasadarayudu's case (supra) Hon'ble Wadsworth, J. held that it is a statutory rule that an injunction should only be granted when pecuniary compensation would not afford adequate relief, but it does not follow 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 want only or after protest, pecuniary compensation is the more appropriate remedy. But where considerable area of land including trees is affected by the structures and where the plaintiff proves his title to land and asks for possession as well as injunction for the removal of the structure, and there is nothing except expense and inconvenience to the defendant; monetary compensation in lieu of mandatory injunction should not be granted. Thus it is not a universal rule that in every case compensation must be granted. In this case the fact found by both the courts below is that 6 sq. yards of piece of land was occupied by the defendants intentionally. The land belongs to the plaintiffs. Learned counsel for the respondents cited Krishna Kumar Agrawal and others vs. Jai Kumar Jain and another (3), in which Hon'ble Apex Court clarified as to what was ordered to be demolished was unauthorised construction and not the entire house of defendant. Learned Counsel for the respondents by citing this judgment submitted that in given cases unauthorised constructions are ordered to be demolished. He, therefore, submitted that so far as 6 sq. yards of piece of land was concerned, it was definitely of the plaintiffs as held by both the courts below and the defendants appellants had no right or authority to raise any construction thereon. The wall was constructed in absence of Plaintiffs. When the defendants have deliberately and wilfully raised construction over the land measuring 6 sq. yards belonging to the plaintiffs, therefore, in my view the reply to the substantial question is that the first appellate Court was right in maintaining the decree of de- molition of the construction in question. Consequently, there is no force in this appeal and the same is hereby dismissed. Respondents shall get cost of the appeal from the appellants which is quantified as Rs. 2,000/ -. ;