LAWS(PVC)-1911-9-36

SOMASUNDARAM CHETTY Vs. BABU ALIAS RAMIAH

Decided On September 28, 1911
SOMASUNDARAM CHETTY Appellant
V/S
BABU ALIAS RAMIAH Respondents

JUDGEMENT

(1.) The suit was to obtain a decree directing the defendants to demolish at their cost the wall built by them on the plaintiff s wall and a permanent injunction restraining the defendants from interfering in any manner with the plaintiff s wall and also for damages, The District Munsif found that the defendants had cut away about two inches of the breadth of the plaintiff s parapet wall on the northern side between the points C and D in the commissioner s plan down to a certain depth and along a length of about 16 feet and built their parapet wall resting it to that extent on the rest of the plaintiff s parapet wall and on the main wall of the plaintiff s house on which the plaintiff s back wall stands. In accordance with that finding the Munsif granted an injunction directing the defendant to remove the wall to the extent of the encroachment and also restraining them from further interfering with the plaintiffs, wall in question. He also found that no actual damage had been sustained by the plaintiffs and disallowed the plaintiffs claim for damages.

(2.) In appeal the District Judge was of opinion that even on the facts found by the Munsif the plaintiffs were not entitled to injunction, mandatory or prohibitive, because the defendants have at most committed a technical trespass by which no inconvenience whatever is caused to them and therefore all that the plaintiffs are entitled to is nominal damages.

(3.) The District Judge, in my opinion, is quite wrong in his view of the law. What is urged in support of this view is that injunction is a discretionary remedy and should not be granted even in a case of trespass when no damage has been caused or-the damage caused to the plaintiff is so small as to be negligible. Now there can be no doubt that injunction being a remedy in equity, the court is vested with a discretion to grant or to refuse it according as the equity of the particular circum stances of a case may require. But that discretion has to be exercised on proper judicial grounds. Here is a case of continuous trespass practically amounting to ouster of the plaintiff from the land encroached upon, which it is found is the property of the plaintiffs and was in their possession at the time of encroachment. The plaintiffs are entitled to possession of the land free from the encroachment. What would be their remedy at law ? Ejectment, and alto damages, if any, and not merely damages as appears to be assumed by the learned Judge, which assumption is also the basis of the arguments advanced in support of his judgment.