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Judgment
The question argued in second appeal is that a mandatory injunction should not have been granted in this case. The facts found are that the wall raised by the defendant on which he has also rested a tiled building has been built on a site belonging to the plaintiff, that the plaintiff objected to it as soon as the raising of the wall was commenced but the defendant persisted in raising the wall and the building, that soon after the wall was finished, the Court, in which the plaintiff could have instituted a suit, was closed and the defendant built his house during the holidays and that after the re opening of the Court, the plaintiff, a poor woman, was not able to file a suit immediately, as she had to raise funds and collect evidence of her title to the site wall. The suit was instituted in October, the construction of the building was completed before July. The District Munsif''s observations show that there was other litigation between the parties in connection with the site of the wall and that the defendant''s act was the result of a deliberate attempt to defeat the plaintiff''s right to the site of the wall. It is argued that the Court can in no case grant a mandatory injunction where the plaintiff did not come to Court before the completion of the building unlawfully constructed and that it is the imperative duty of the plaintiff to move the Court for a temporary injunction before the construction of the building is finished. There is, in our opinion, no authority for such a proposition. It has, no doubt, sometimes been held that the mere fact that the plaintiff objected to the defendant''s improper act will not necessarily entitle him to a mandatory injunction.
It is quite possible for the Court to come to the conclusion, in the circumstances of any particular case, that the plaintiff''s conduct might be taken to show that the plaintiff was content with an action for damages but afterwards changed his mind to ask for a mandatory injunction and the Court might, in circumstances where a waiver of a right to a site might be inferred in substitution for a claim for damages, refuse a mandatory injunction. On the other hand, it would be a dangerous doctrine to lay down that a person, by unlawfully trespassing on another''s land, might, if sufficiently diligent to complete his unlawful act before a suit could be instituted, successfully maintain that a mandatory injunction could not be granted. This would put a premium upon deliberate defiance of other persons'' rights of property and would enable a person to compulsorily acquire property belonging to another if his unlawful act is accompanied with promptness in completing it. The English decisions are favourably inclined in the matter of granting mandatory injunctions when the unlawful act does not merely obstruct proper enjoy, meat of plaintiff''s rights of property, as by interference with light and air, bat is calculated to deprive him of the property itself. See Goodson v. Richardson (1874) L.R. 9 Ch. 221 : 22 W.R. 337 which was followed in Marriott v. East Grimstead Gas and Water Co. (1909) 1 Ch. 70. The law on the subject has been summarised in Kerr on Injunctions, pages 32, 33 and 34. It is clear from Kerr''s summary that, even where there is some delay in the institution of the suit, and damages might be sufficient compensation, the Court has always a discretion to grant a mandatory injunction, if, in all the circumstances of the case, it is of opinion that justice between the parties requires it. See also Somasundaram Chetty v. Bappu 12 Ind. Cas. 635 : 10 M.L.T. 473. We have no doubt that in this case, the lower Appellate Court is right in granting the plaintiff''s prayer for a mandatory injunction.
We dismiss the second appeal.