Radhakishan vs Digamber Jain Mandir, Guna

A.H. Khan, J.—The Plaintiffs filed a suit, alleging that their land, measuring 36 ft. by 20 ft. has been encroached upon by the Defendants (Shri Digambar Jain Temple, Guna and its two managers) and prayed that the wall that has been constructed on their land should be demolished and the Defendants should be restrained by an injunction not to encroach upon the land of the Plaintiffs in the future. The trial Court after recording the evidence held that the Plaintiffs failed to prove that the land in dispute was theirs. On appeal, the learned Additional District Judge, Guna, held that there was encroachment by the Defendants to the extent of 36 ft. by 11 inches. It, however, did not grant an injunction but in its stead passed a decree for Rs. 110/- by way of compensation. Aggrieved by this the plain-tiffs have filed an appeal No. 69 of 1959, praying that the Plaintiffs'' suit be decreed according to the prayer in the plaint; the Defendants have also filed cross-objections, contending that the dis (sic) is theirs.

Regarding the appeal of the Plaintiffs, it appears that the appellate Court considered the encroachment to be trivial and said that the grant of a mandatory injunction was an enquitable relief within the discretion of the Court. It referred to Section 54 of the Specific Relief Act. and, holding that invasion is such that pecuniary compensation would be adequate, awarded Rs. 110/- as compensation.

The Plaintiffs in the present case, seek two remedies: one is the legal remedy of seeking the eviction of the trespasser, and the other is the equitable relief of an injunction, restraining the Defendants from interfering with the possession in the future. The remedy of the injunction is undoubtedly a discretionary remedy and the Court may refuse to grant it. In fact the prayer for the grant of an injunction is a useless one, in so far as that once the Plaintiffs get back the land encroached upon, the Defendants are not likely to repeat the error, but if they did, another suit could be brought against them.

But the legal remedy of the Plaintiffs is based on their legal right to get the trespasser evicted and it does not admit of any equitable doctrine. It is a well-knwon principle of Equity that Equity follows the law. If the land encroached upon belongs to the Plaintiffs (as has been held in this case) then the Plaintiffs are legally entitled to get it back, and, that Equity will follow it rather than ove-ride it.

Soon after filing of the suit, the Plaintiffs applied for a temporary injunction. On 10-4-54, the Defendants gave an explicit undertaking to the Court that in case the Plaintiffs would succeed, the Defendants would remove the encroachment at their own costs. The undertaking is contained in an application by the Defendants in File No. 31/54 (B) of the Civil Judge Second Class, Guna.

How much land has been encroached upon is a finding of fact and the first appellate Court has held that it is 36'' by 11 inches. That 36ft. by 11 inches space belonging to the Plaintiffs has been encroached upon by the Defendants is a finding of fact based on evidence and it is not open to this Court to attempt to re-appreciate that evidence as held by the Supreme Court in 1960 JLJ 870 : AIR 1961 SC 1097 (Raruhasingh v. Achal-singh).

The learned Counsel for the Respondent has referred me to AIR 1957 Nag.2 (Trilokchand Nathmal and Anr. v. DhundiraJ Madhavrao and others) which is a Division Bench case of the Nagpur High Court, consisting of Hidayatullah C.J. and Mangalmurti J. Under the peculiar circumstances of the case, the Division Bench refused to give discretionary relief of mandatory injunction, and, ordered the Defendants to pay compensation of Rs. 50. The main features of the Nagpur case were that the Plaintiffs complained that the encroachment was to the extent of 11/2 ft. by 1ft. only; that the Defendants had been constructing a wall in 1948, and, the Plaintiffs had brought a suit for removal of the encroachment and injunction sometimes in 1951; that 12 years prior to the filing of the suit, the Defendants had already encroached upon an open space of the Plaintiffs, measuring about 11/2 ft. by 1 ft. by means of a projection, without any protest from the Plaintiffs. In "these peculiar circumstances", (these words have been actually used in the judgment), the learned Judges of the Nagpur High Court refused to grant an injunction and its stead, passed a decree for Rs. 50.

But in the instant case, the position is very different. The encroachment was made on 24-3-54. The Defendants had not acquired any easementary right on any portion of the land, and, the suit for removal of the encroachment was filed within two days. In the Nagpur case, the suit was filed much after the completion of the building. In the instant case the Defendants had only dug the foundation at the time of institution of the suit, and, that when the Plaintiffs asked for a temporary injunction, the Defendants gave an undertaking to the Court to the effect that they be permitted to build a wall, and, that eventually if the encroachment would be established they would pull it down at their own costs. Thus it will appear that the facts of the present case vastly differ from that of the Nagpur case in more particulars than one, and it will not be proper to apply the ratio decidendi of the Nagpur case to the one under consideration.

In the cross-objection filed by the Defendants, the main contention is that the finding of the first appellate Court that the Defendants have encroached upon the land measuring 36 ft. by 11 inches is not correct. This is obviously a question of fact and as held by the Supreme Court in AIR 1959 SC 57 (Deity Pattabhiramaswamy v. S. Hanymayya and others), this Court has no jurisdiction to entertain a second appeal or for the matter of that cross-objections on questions of fact. There is, therefore, no substance in cross-objections.

In result, I would allow the appeal with costs throughout and direct that the Defendants should remove the encroachment measuring 36 ft. by 11 inches, and that possession of the land be given to the Plaintiffs according to the undertaking referred to above. The prayer far injunction is disallowed. The cross-objections filed by the Defendants are dismissed with costs. Let a decree be framed accordingly.